Exhibit 10.10


 


EMPLOYMENT AGREEMENT


 


AGREEMENT made as of April 5, 2004, between ABIOMED,
Inc., a Delaware corporation with an office at 22 Cherry Hill Park,
Danvers, Massachusetts (the “Company” or “ABIOMED”), and Michael R. Minogue (the
“Executive”), residing at 2120 North Lake Drive, Milwaukee, Wisconsin 53202.


 


W I T N E S S E T H:


 


WHEREAS, the Company desires that Executive
be employed to serve in a senior executive capacity with the Company, and
Executive desires to be so employed by the Company, upon the terms and
conditions herein set forth.


 


NOW, THEREFORE, in consideration of the
premises and of the mutual promises, representations and covenants herein
contained, the parties hereto agree as follows:


 


1.                                       Employment.  The Company hereby employs Executive and
Executive hereby accepts such employment, subject to the terms and conditions
herein set forth.  During the term of
his employment hereunder, Executive shall hold the offices of President and
Chief Executive Officer and shall report to the Board of Directors of the
Company.  Executive shall also serve as
a member of the Board of Directors of the Company until the next Annual Meeting
of Shareholders or Special Meeting in Lieu Thereof, at which time Executive’s
name will be on the ballot for re-election by the shareholders, as required by
law.  It is intended that Executive will
thereafter be nominated for re-election to the Board of Directors as required
by law during the period in which he is serving as the President and Chief
Executive Officer of the Company.


 


2.                                       Term.  The term of this Agreement shall begin on
the date hereof.  There shall be no
definite term of employment or of this Agreement, and Executive shall be an
employee at will.  This Agreement will
terminate upon the termination of Executive’s employment pursuant to Section 8
or 9 of this Agreement.


 


3.                                       Compensation.


 


(a)                                  As compensation for
the employment services to be rendered by Executive hereunder, including all
services as an officer of the Company and any of its subsidiaries and affiliates,
the Company agrees to pay, or cause to be paid, to Executive, and Executive
agrees to accept, payable in semi-monthly installments in accordance with
Company practice, an initial annual salary of $325,000.00 for the year of
employment ending March 31, 2005. 
Executive’s annual salary hereunder for subsequent years of employment
shall not be decreased and shall be reviewed annually by the Compensation
Committee of the Board of Directors in its sole discretion.


 


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(b)                                 Executive will be
eligible to participate in the Company’s Incentive Program for Senior Officers,
as determined from time to time by the Compensation Committee of the Board of
Directors in its sole discretion.


 


(c)                                  During the Company’s
fiscal year beginning April 1, 2004, Executive will be eligible for a maximum
bonus of up to $325,000.00 for outstanding performance.  In such fiscal year only, $162,500.00 of
such maximum bonus (the “First Year Guaranteed Amount”), is guaranteed and shall
be payable quarterly.  Notwithstanding
the quarterly payment schedule, the First Year Guaranteed Amount will accrue to
Executive on a daily basis, such that if Executive’s employment with the
Company is terminated during such first fiscal year, Executive will be entitled
to receive, pursuant to the terms of Sections 8 or 9 hereof, only that portion
of the First Year Guaranteed Amount that has accrued through the date of
termination.  Bonus payments, other than
the First Year Guaranteed Amount, will be based upon achievement of specific
goals to be mutually determined by Executive, the Chairman of the Board of
Directors and the Compensation Committee of the Board of Directors and will be
tied to the Company’s fiscal year goals. 
Other than the First Year Guaranteed Amount, bonus payments in
connection with Executive’s first year of employment with the Company will be
made at the discretion of the Compensation Committee, but in no event later
than on or about July 1, 2005.


 


(d)                                 Effective as of the
date hereof, Executive will be granted incentive and non-qualified options to
purchase 300,000 shares of the Company’s Common Stock, $.01 par value per share
(“Common Stock”), pursuant to the Company’s 1998 Equity Incentive Plan and 2000
Stock Incentive Plan (the “Plans”) and an additional non-qualified option to
purchase 100,000 shares of the Company’s Common Stock.  The exercise price of each option will be
the fair market value of the Company’s Common Stock on the close of business on
the date hereof.  Subject to the
provisions of Exhibit B, the options will vest over four years according to the
following vesting schedule: 25% will vest on the first anniversary of the date
of grant, and 25% will vest on each anniversary thereafter, with complete
vesting as of the fourth anniversary of the date of grant.  Each such option will have a basic term of
ten years, subject to obtaining approval by the Compensation Committee of the
Company will be exercisable for at least one year in the event Executive’s
employment is terminated by the Company without justifiable cause,   and will be subject to the terms of the
Company’s forms of stock option agreement and, where relevant, such Plans.  The 100,000 shares of Common Stock covered
by such additional non-qualified option not issued pursuant to either of the
Plans shall be registered under the Securities Act of 1933 pursuant to a
Registration Statement on Form S-8 within 30 days after the date hereof.


 


4.                                       Expenses.  The Company shall pay or reimburse
Executive, upon presentment of suitable vouchers, for all reasonable business
and travel expenses which may be incurred or paid by Executive in connection
with his employment hereunder. 
Executive shall comply with 


 


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such restrictions and shall keep such records as the Company may deem
necessary to meet the requirements of the Internal Revenue Code of 1986, as
amended from time to time, and regulations promulgated thereunder.


 


5.                                       Other
Benefits.


 


(a)                                  Executive shall be
entitled to participate in and receive any other benefits customarily provided
by the Company to its senior management personnel (including any bonus, profit
sharing, pension, 401(k), short and long-term disability insurance, hospital,
major medical insurance and group life insurance plans in accordance with the
terms of such plans) and including stock option and/or stock purchase plans,
all as determined from time to time by the Compensation Committee of the Board
of Directors of the Company (the “Compensation Committee”).  It is understood that the grant of stock
options pursuant to Section 3(d) hereof is not intended to be in lieu of
regular stock option grants as determined from time to time by the Compensation
Committee.


 


(b)                                 Executive will accrue
vacation time at a rate of four (4) weeks per year.


 


(c)                                  In addition to the
group life insurance provided by the Company to all employees, referenced in
Section 5(a) above, the Company will use its best efforts to provide Executive
with additional term life insurance of $1,000,000 at no cost to Executive.


 


(d)                                 Executive shall be
entitled to receive promptly after execution and delivery of this Agreement by
him and the Company a one-time sign-on housing allowance of $300,000.00.  If applied directly to the purchase of a home
in the Boston area, Executive shall be entitled to reimbursement of up to an
additional $100,000.00 for (i) federal, state and local income and employment
taxes on such sign-on housing allowance and (ii) real estate taxes, commissions
and other expenses incurred in connection with the sale of Executive’s existing
residence and the purchase of Executive’s residence in the Boston area.   Such reimbursement shall be payable
immediately upon the purchase by Executive of a residence in the Boston area.
In addition, Executive will be entitled to reimbursement for customary
relocation expenses, including but not limited to expenses incurred in moving
his household goods and automobiles to the Boston area, travel, car rental and
lodging in connection with efforts to find a home in the Boston area.


 


6.                                       Indemnification.  Executive will receive the benefit of the
Company’s standard Indemnification Agreement as set forth in Exhibit A hereto
and countersigned by Executive and the Company.  Executive and the Company agree to be subject to, and bound by,
the provisions, terms and conditions of such Agreement.


 


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7.                                       Duties.


 


(a)                                  Executive shall
perform such duties and functions, and have such authority,  as are provided by the Company’s by-laws and
as are typical for the president and chief executive officer of a company
similar to the Company, including, but not limited to, authority with respect
to personnel decisions and establishment of strategic business plans subject to
the approval of the Board of Directors of the Company.  In addition, Executive shall have such other
duties and functions as the Board of Directors of the Company shall from time
to time determine and Executive shall comply in the performance of his duties
with the policies of, and be subject to the direction of, the Board of
Directors.  At the request of the Board
of Directors, Executive shall serve, without further compensation, as an
executive officer of any subsidiary or affiliate of the Company and, in the
performance of such duties, Executive shall comply with the policies of the
Board of Directors of each such subsidiary or affiliate.


 


(b)                                 During the term of
this Agreement, Executive shall devote substantially all of his time and
attention, vacation time and absences for sickness excepted, to the business of
the Company, as necessary to fulfill his duties.  Executive shall perform the duties assigned to him with fidelity
and to the best of his ability. 
Notwithstanding anything herein to the contrary, Executive may engage in
other activities so long as such activities do not unreasonably interfere with
Executive’s performance of his duties hereunder and do not violate the
non-competition or other provisions of Exhibit C hereto, including the
Company’s Conflicts of Interest Policy attached thereto.


 


(c)                                  Nothing in this
Section 7 or elsewhere in this Agreement shall be construed to prevent
Executive from investing or trading in nonconflicting investments as he sees
fit for his own account, including real estate, stocks, bonds, securities,
commodities or other forms of investments.


 


(d)                                 The principal location
at which Executive shall perform his duties hereunder shall be at the Company’s
offices in Danvers, Massachusetts or at such other location as may be designated
from time to time by the Board of Directors of the Company; provided, that if
the principal location of Executive’s duties is transferred from Danvers,
Massachusetts, the new principal location of Executive’s duties shall not be
transferred beyond a 35-mile radius of Danvers, Massachusetts without
Executive’s consent.  Notwithstanding
the foregoing, Executive shall perform such services at such other locations as
may be required for the proper performance of his duties hereunder, and
Executive recognizes that such duties may involve travel.


 


8.                                       Termination
of Employment; Effect of Termination.


 


(a)                                  Executive’s
employment hereunder may be terminated at any time upon written notice from the
Company to Executive:


 


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(i)                                     for any reason
which would not constitute justifiable cause (as hereinafter defined) upon
thirty (30) days’ prior written notice to Executive; or


 


(ii)                                  upon the
determination by the Board of Directors that there is justifiable cause (as
hereinafter defined) for such termination upon five (5) days’ prior written
notice to Executive.


 


(b)                                 Executive’s employment
shall terminate upon:


 


(i)                                     the death of
Executive; or


 


(ii)                                  the “disability” of
Executive (as hereinafter defined pursuant to subsection (c) hereof) pursuant
to subsection (f) hereof.


 


(c)                                  For the purposes of
this Agreement, the term “disability” shall mean the inability of Executive,
due to illness, accident or any other physical or mental incapacity,
substantially to perform his duties for a period of three (3) consecutive
months or for a total of six (6) months (whether or not consecutive) in any
twelve (12) month period during the term of this Agreement, as reasonably
determined by the Board of Directors of the Company after examination of
Executive by an independent physician reasonably acceptable to Executive.


 


(d)                                 For the purposes  of this Agreement, the term “justifiable
cause” shall mean and be limited to: 
(i) any repeated failure or refusal to perform any of Executive’s
material duties pursuant to this Agreement, including any of the exhibits
hereto, where such conduct shall not have ceased within 10 days following
written warning from the Board of Directors of the Company and an opportunity
of Executive to meet with the Board of Directors to discuss such matters; (ii)
a good faith determination by the Board of Directors of the Company based on a
preponderance of the evidence, that Executive has committed of a crime (other
than routine traffic violations) or any other offense involving money or other
property of the Company or its subsidiaries or affiliates if Executive has
received written notice from the Board of Directors of the Company with respect
thereto and an opportunity to meet with the Board of Directors to discuss such matters
(iii) any unauthorized disclosure by Executive to any person, firm or entity
other than the Company, its subsidiaries or affiliates and their respective
directors, officers and employees (or other persons fulfilling similar
functions), of any material confidential information or trade secret of the
Company or any of its subsidiaries or affiliates other than any disclosure made
in good faith in the belief that such disclosure was in the best interests of
the Company;  (iv) any material failure
by Executive to comply fully with the requirements of the Sarbanes-Oxley Act of
2002 and related regulations or with the Guidelines of Company Practices, as
set forth in Exhibit D hereto and as revised from time to time, which conduct
shall not have ceased within 10 days following written notice from the Board of
Directors of the Company and an opportunity of Executive to meet with the Board
of Directors to discuss such matters; or the (v) engaging by Executive in any 


 


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business for profit other than the business of the Company and its
subsidiaries and affiliates during the term of this Agreement.  Upon termination of Executive’s employment
for justifiable cause, this Agreement shall terminate immediately and Executive
shall not be entitled to any amounts or benefits hereunder other than such
portion of Executive’s annual salary and reimbursement of expenses pursuant to
Section 4 hereof as has been accrued through the date of his termination of
employment and indemnification as provided in Section 6 hereof.


 


(e)                                  If Executive shall
die during the term of his employment hereunder, this Agreement shall terminate
immediately.  In such event, the estate
of Executive shall thereupon be entitled to receive such portion of Executive’s
annual salary, bonus, if any, and reimbursement of expenses pursuant to Section
4 as has been accrued through the date of his death.


 


(f)                                    Upon Executive’s
“disability,” the Company shall have the right to terminate Executive’s
employment.  Notwithstanding any
inability to perform his duties, Executive shall be entitled to receive his
compensation (including bonus, if any) and reimbursement of expenses pursuant
to Section 4 as provided herein until he begins to receive long-term disability
insurance benefits under the policy provided by the Company pursuant to Section
5 hereof.  Any termination pursuant to
this subsection (f) shall be effective on the later of (i) the date 30 days
after which Executive shall have received written notice of the Company’s
election to terminate or (ii) the date he begins to receive long-term
disability insurance benefits under the policy provided by the Company pursuant
to Section 5 hereof.


 


(g)                                 Notwithstanding any
provision to the contrary contained herein, in the event that Executive’s
employment is terminated by the Company at any time (other than following a
Change in Control, as defined in Exhibit B hereto) for any reason other than
justifiable cause, disability or death, the Company shall upon such
termination, immediately pay Executive a lump sum payment equal to such portion
of Executive’s salary, bonus, if any, and reimbursement of expenses pursuant to
Section 4 as has been accrued through the date of termination of Executive’s
employment.


 


(h)                                 Executive may terminate
his employment at any time upon 30 days’ prior written notice to the
Company.  Upon Executive’s termination
of his employment hereunder, this Agreement (other than Sections 4, 6, 8, 9 and
11 and Exhibits A, B, C and D, which shall survive in accordance with their
respective terms) shall terminate.  In
such event, Executive shall be entitled to receive such portion of Executive’s
annual salary and bonus, if any, as has been accrued to date.  Executive shall be entitled to reimbursement
of expenses pursuant to Section 4 hereof and to participate in the Company’s
benefit plans to the extent participation by former employees is required by
law or permitted by such plans, with the expense of such participation to be as
specified in such plans for former employees.


 


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(i)                                     Upon the
resignation of Executive in any capacity, that resignation will be deemed to be
a resignation from all offices and positions that that person holds with
respect to the Company and any of its subsidiaries and affiliates.


 


9.                                       Change of
Control.   Executive and the Company
agree to be subject to, and bound by, the provisions, terms and conditions of
the Company’s standard Change of Control Agreement, as set forth in Exhibit B
hereto and countersigned by Executive and the Company (the “Change of Control
Agreement”).  Following a Change of
Control (as defined in such Agreement), if there is any conflict between the
provisions of the Change of Control Agreement and the termination provisions of
Section 8 hereof, the provisions of the Change of Control Agreement shall
govern.


 


10.                                 Representation and
Agreements of Executive.


 


(a)                                  Executive represents
and warrants that he is free to enter into this Agreement and to perform the
duties required hereunder, and that there are no employment contracts or
understandings, restrictive covenants or other restrictions, whether written or
oral, preventing, or which will have an impact on, the performance of his
duties hereunder.


 


(b)                                 Executive agrees to
submit to a medical examination and drug screen test and to cooperate and
supply such other information and documents as may be required by any insurance
company in connection with the Company’s obtaining life insurance on the life
of Executive, and any other type of insurance or fringe benefit as the Company
shall determine from time to time to obtain for Executive’s benefit.


 


11.                                 Non-Competition;
Non-Disclosure of Confidential Information; Inventions and Discoveries.  Executive agrees to be subject to, and bound
by, the provisions, terms and conditions set forth in Exhibit C hereto and
countersigned by Executive and the Company as fully as if such terms and
conditions were set forth herein.


 


13.                                 Amendment or
Alteration.  No amendment or
alteration of the terms of this Agreement shall be valid unless made in writing
and signed by both of the parties hereto.


 


14.                                 Governing Law.  This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive laws of The
Commonwealth of Massachusetts, without regard to its principles of conflicts of
laws.


 


15.                                 Severability.  The holding of any provision of this
Agreement, including the exhibits hereto, to be invalid or unenforceable by a
court of competent jurisdiction shall not affect any other provision of this
Agreement, which shall remain in full force and effect.


 


16.                                 Independence of
Executive’s Covenants.   The covenants on the part of Executive to be performed under this
Agreement and the Exhibits hereto shall be construed as agreements independent
of any other provisions of this Agreement, and the existence of any claims or
cause of action of Executive against the Company, whether predicated on this
Agreement 


 


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or otherwise, shall not constitute a defense to the enforcement by the
Company or its assigns of any of Executive’s covenants hereunder.


 


17.                                 Notices.  Any notices required or permitted to be
given hereunder shall be sufficient if in writing, and if delivered by hand or
courier, or sent by certified mail, return receipt requested, to the addresses
set forth above or such other address as either party may from time to time
designate in writing to the other or as reflected on the Company’s records, and
shall be deemed given as of the date of the delivery or at the expiration of
three days in the event of a mailing.


 


18.                                 Waiver or Breach.  It is agreed that a waiver by either party
of a breach of any provision of this Agreement shall not operate, or be
construed as a waiver of any subsequent breach by that same party.


 


19.                                 Entire Agreement
and Binding Effect.  This Agreement,
including the exhibits attached hereto, contains the entire agreement of the
parties with respect to the subject matter hereof, supersedes all prior
agreements, both written and oral, between the parties with respect to the
subject matter hereof, and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, legal representatives,
successors and assigns.


 


20.                                 Survival.  Except as otherwise expressly provided
herein, the termination of Executive’s employment hereunder or the expiration
or sooner termination of this Agreement shall not affect the enforceability of
Sections 4, 6, 8, 9 and 11 hereof or of any of the Exhibits hereto, all of
which shall survive any such termination or expiration in accordance with their
respective terms.


 


21.                                 Further Assurances.  The parties agree to execute and deliver all
such further documents, agreements and instruments and to take all such further
actions as may be necessary or appropriate to carry out the purposes and intent
of this Agreement.


 


22.                                 Construction
of Agreement.  A reference to a
Section or Exhibit shall mean a Section in or Exhibit to this Agreement unless
otherwise expressly stated.  The titles
and headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a
whole.  The words “include,” “includes”
and “including” when used herein shall be deemed in each case to be followed by
the words “without limitation.”  Unless
the context otherwise requires, the term “person,” shall include any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust company, trust, unincorporated organization, government agency
or entity or any subdivision thereof, or any other entity.


 


23.                                 Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.


 


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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, under seal, as of the date and year first above
written.


 


 


	
   

  	
  ABIOMED, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M. Lederman

  	
   

  
	
   

  	
  David M. Lederman, Chairman of the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/

  	
  Michael R. Minogue

  	
   

  
	
   

  	
   

  	
  Michael R. Minogue

  
					



 


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EXHIBIT A


 


ABIOMED, Inc.


Indemnification Agreement


 


This
Agreement, made and entered into as of this 5th day of April, 2004, by and
between ABIOMED, Inc. a Delaware corporation (“Company”) and Michael R. Minogue
(“Indemnitee).


 


WHEREAS,
highly competent persons may be reluctant to serve publicly-held corporations
as officers or in other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of the corporation; and


 


WHEREAS, the
potential impracticability of obtaining adequate insurance and the
uncertainties relating to indemnification have increased the difficulty of
attracting and retaining such persons; and


 


WHEREAS, it is
reasonable, prudent, and necessary for the Company contractually to obligate
itself to indemnify such persons so that they will serve the Company, and


 


WHEREAS,
Indemnitee is willing to serve, continue to serve, and to take on additional
service for on or behalf of the Company on the condition that Indemnitee be
indemnified in accordance with the terms and conditions set forth herein.


 


NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:


 


Article 1


 


Definitions


 


For purposes of
this Agreement, the following terms shall have the meanings indicated:


 


1.01                           “Board”
shall mean the Board of Directors of the Company.


 


1.02                           “Code
of Conduct” shall mean the Company’s Guidelines of Company Principles and
Practices as in effect from time to time.


 


1.03                           “Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent, trustee or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan, or other



 


 


A-1

















 


enterprise
which such person is or was serving at the express written interest of the
Company.


 


1.04                           “Court”
means the Court of Chancery of the State of Delaware, the court in which the
Proceeding in respect of which indemnification is sought by Indemnitee shall
have been brought or is pending, another court having subject jurisdiction and
personal jurisdiction over the parties.


 


1.05                           “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought  by Indemnitee.


 


1.06                           “Employment
Agreement” means the employment agreement between the Company and Indemnitee,
if any, as it may be amended from time to time.


 


1.07                           “Enterprise”
shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was
serving at the express written request of the Company as a director, officer,
employee, agent, trustee or fiduciary.


 


1.08                           “Expenses”
shall include, without limitation, all reasonable attorney’s fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplication costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding.


 


1.09                           “Good
Faith” shall mean Indemnitee having acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interest of
the Company, or in the case of an Enterprise which is an employee benefit plan,
the best interests of the participants or beneficiaries of said plan, as the
case may be, and, with respect to any Proceeding which is criminal in nature,
having had not reasonable cause to believe Indemnitee’s conduct was unlawful.


 


1.10                           “Independent
Counsel” mean a law firm, or a member of a law firm, that is experienced in
matters of corporation law, and may include law firms or members thereof that
are regularly retained by the Company but not any other party to the Proceeding
giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent Counsel”
shall not include any person who, under the standards of professional conduct
then prevailing and applicable to such counsel, would have a conflict of
interest in representing either the Company or the Indemnitee in an action to
determine Indemnitee’s rights under this Agreement.


 


1.11                           “Proceeding”
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation (including any internal corporate investigation), administrative
hearing or any other actual, threatened or completed proceeding whether civil,
criminal, administrative or investigative, other than the one initiated by
Indemnitee.  For purposes of the
foregoing sentence, a “Proceeding” 


 


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shall not be
deemed to have been initiated by Indemnitee. 
For purposes of the foregoing sentence, a “Proceeding” shall not be
deemed to have been initiated by Indemnitee where Indemnitee seeks to enforce Indemnitee’s
rights under this Agreement.


 


Article II


 


Terms of Agreement


 


This Agreement
shall continue until terminated upon the later of a: (i) ten years after the
date that Indemnitee shall have ceased to serve as a director, officer,
employee, agent, trustee or fiduciary of the Company or of any other
Enterprise; or (ii) the final termination of all pending Proceedings in respect
of which Indemnitee is granted rights of indemnification or advancement of
expenses hereunder.


 


Article III


 


Services by Indemnitee, Notice of Proceedings


 


3.01                           Services.  Indemnitee agrees to serve or continue to
serve as an Officer of the Company for so long as he/she is duly elected or
appointed.  Indemnitee may at any time
and for any reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law).


 


3.02                           Notice
of Proceeding.  Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information, or other document
relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder, but the omission so to notify the
Company shall not relieve the Company from its obligations hereunder, except to
the extent that the Company is prejudiced thereby.


 


Article IV


 


Indemnification


 


4.01                           In
General.  In connection with any
Proceeding, the Company may or shall indemnify, and advance Expenses, to
Indemnitee as provided in this Agreement to the fullest extent permitted by
applicable law in effect on the date hereof and to such greater extent as
applicable law may hereafter from time to time permit.


 


4.02                           Proceedings
Other than Proceedings by or in the Right of the Company.  Indemnitee shall be entitled to the rights
of indemnification provided in this Section 4.02 if, by reason of the
Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be made, a
party to or is otherwise involved in any Proceeding, other than a Proceeding by
or in the right of the Company.  


 


A-3

















 


Indemnitee
shall be indemnified against expenses, judgments, penalties, fines and amounts
paid in settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding or any claim, issue or
matter therein, if Indemnitee acted in Good Faith.  Notwithstanding the foregoing, if Indemnitee shall have been
found to have violated the Employment Agreement or the Company’s Code of Conduct
then, in effect, the Company may, to the extent authorized by the Board,
indemnify Indemnitee against Expenses, judgments, penalties, fines and amounts
paid in settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in
Good Faith.


 


4.03                           Proceedings
by or in the Right of the Company.


 


(a)                                  Indemnitee
shall be entitled to the rights of indemnification provided in this Section
4.03, if, by reason of Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be made, a party to or is otherwise involved in any Proceeding
brought by or in the right of the Company to procure a judgment in its
favor.  Indemnitee shall be indemnified
against Expenses, judgments, penalties, and amounts paid in connection with
such Proceeding if Indemnitee acted in Good Faith.  Notwithstanding the foregoing, no such indemnification shall be
made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company or, if
applicable law prohibits such indemnification, provided, however, that, if
applicable law so permits, indemnifications may nevertheless be made by the
Company in such event if and only to the extent that the Court which is
considering the matter shall determine.


 


(b)                                 Notwithstanding
any provision to the contrary in this Section, if the Board, Independent
Counsel, or the stockholders as the case may be, making the determination with
respect to indemnification as provided under Section 6.02 hereof, or the Court
considering the matter determines that the act of omission which forms the
basis for the claim which is the subject of the Proceeding violated the
Employment Agreement or the Company’s Code of Conduct then in effect, then,
notwithstanding that fact, the Company may, to the extent authorized by the
Board, indemnify Indemnitee against all Expenses, judgments, penalties, and
amounts paid in settlement, actually and reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted
in Good Faith.


 


4.04                           Indemnification
of a Party Who is Wholly or Partly Successful.


 


Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of Indemnitee’s Corporate Status, a party to or is otherwise involved in
and is successful, on the merits or otherwise, in any Proceeding, Indemnitee
shall be indemnified to the maximum extent permitted by law, against all
Expenses, judgments, penalties, fines, and amounts paid in 


 


A-4

















 


settlement,
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith.  If Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in
such Proceeding, the Company may indemnify Indemnitee to the maximum extent
permitted by law, against all Expenses, judgments, penalties, fines and amounts
paid in settlement, actually and reasonably incurred by such Indemnitee or on
such Indemnitee’s behalf in connection with each successfully resolved claim,
issue or matter.  For purposes of this
Section 4.04 and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.


 


4.05                           Indemnification
for Expenses of a Witness. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness in
any Proceeding, other than to a Proceeding addressed by Sections 4.02 or 4.03
(for which those provisions shall control), Indemnitee shall be indemnified against
all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith.


 


Article V


 


Advancement of Expenses


 


Notwithstanding
any provision to the contrary in Article VI, the Company (acting through the
Chairman of the Board, President, Executive Vice President or any Vice
President of the Company) may advance all reasonable Expenses which, by reason
of Indemnitee’s Corporate Status, were incurred by or on behalf of Indemnitee
in connection with any Proceeding, within twenty (20) days after the receipt by
the Company of a statement or statements from Indemnitee requesting such
advance or advances, whether prior to or after final disposition of such
Proceeding.  Such statement or
statements shall reasonably evidence accompanied by an undertaking by or on
behalf of the Indemnitee to repay any Expenses if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses.  Any advance and undertakings
to repay pursuant to this Article V shall be unsecured and interest free.  Advancement of Expenses pursuant to this
Article V shall not require approval of the Board of Directors or the
stockholders of the Company, or of any other person or body.  The Secretary of the Company shall promptly
advise the Board in writing of the request for advancement of Expenses, of the
amount and other details of the advance and of the undertaking to make
repayment pursuant to this Article V.


 


A-5

















 


Article VI


 


Procedures of
Determination of Entitlement to Indemnification and Defense of Claims


 


6.01                           Initial
Request.  To obtain indemnification
under this Agreement (other than advancement of expenses pursuant to Article
V), Indemnitee shall submit to the Company a written request, including therein
or therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. 
The Secretary of the Company shall promptly advise the Board in writing
that Indemnitee has requested indemnification.


 


6.02                           Method
of Determination.  A determination (if
required by applicable law in the specific case) with respect to Indemnitee’s
entitlement to indemnification shall be made (a) by the Board by a majority
vote of a quorum consisting of Disinterested Directors, or (b) in the event
that a quorum of the Board consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of Disinterested Directors
directs, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to the Indemnitee, or (c) by the holders of a majority
of the votes of the outstanding stock at the time entitled to vote on matters
other than the election or removal of directors, voting as a single class,
including the stock of the Covered Person seeking Indemnification.


 


6.03                           Selection,
Payment, Discharge, or Independent Counsel. 
In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 6.02 of this Agreement, the
Independent Counsel shall be selected, paid, and discharged in the following
manner:


 


(a)                                  The
Independent Counsel shall be selected by the Board, and the Company shall give
written notice to Indemnitee advising Indemnitee of the identity of the
Independent Counsel so selected.


 


(b)                                 Following
the initial selection described in clause (a) of this Section 6.30, Indemnitee
may, within seven (7) days after such written notice of selection has been
given, deliver to the Company a written objection to such selection.  Such objection may be asserted only on the
grounds that the Independent Counsel so selected does not meet the requirements
of “Independent Counsel” as defined in Section 1.10 of this Agreement, and the
objection shall set forth with particularity the factual basis of such
assertion.  Absent a proper and timely
objection, the person so selected shall act as Independent Counsel unless and
until a court has determined that such objection is without merit.


 


(c)                                  Either
the Company or Indemnitee may petition a Court if the parties have been unable
to agree on the selection of Independent Counsel within twenty (20) days after
submission by Indemnitee of a written request for Indemnification pursuant to
Section 6.01 of this Agreement.  Such
petition may request a determination whether an objection to the 


 


A-6

















 


party’s
selection is without merit and/or seek the appointment as Independent Counsel
of a person selected by the Court or by such other person as the Court shall
designate.  A person so appointed shall
act as Independent Counsel under Section 6.02 of this Agreement.


 


(d)                                 The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to this Agreement, and the Company shall pay all reasonable fees and expenses
incident to the procedures of this Section 6.03, regardless of the manner in
which such Independent Counsel was selected or appointed.


 


6.04                           Cooperation.  Indemnitee shall cooperate with the person,
persons, or entity making the determination with respect to the Indemnitee’s
entitlement to indemnification under this Agreement, including providing to
such person, persons, or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination.  Any
costs or expenses (including attorney’s fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination
as to the Indemnitee’s entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.


 


6.05                           Defense
of claim.  With respect to any
Proceeding to which Indemnitee shall have requested indemnification in
accordance with Section 6.01:


 


(a)                                  The
Company will be entitled to participate in the defense at its own expense.


 


(b)                                 Except
as otherwise provided below, the Company jointly with any other indemnifying
party will be entitled to assume the defense with counsel reasonably
satisfactory to Indemnitee.  After
notice from the Company to Indemnitee of its election to assume the defense of
a suite, the Company will not be liable to Indemnitee under this Article for
any legal or other expenses subsequently incurred by Indemnitee in connection
with the defense of the Proceeding other than reasonable costs of investigation
or as otherwise provided below. 
Indemnitee shall have the right to employ his/her own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense shall be at the expense of the
Indemnitee only if (i) the employment of counsel by the Indemnitee has been
authorized by the Company, (ii) the Indemnitee shall have concluded reasonably
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of the defense of such action and such conclusion is confirmed
in writing by the Company’s outside counsel regularly employed by it in
connection with corporate matters, or (iii) the 


 


A-7

















 


Company shall
not in fact have employed counsel to assume the defense of such Proceeding, the
Company shall not be entitled to assume the defense of any Proceeding brought
by or in the right of the Company or as to which the Indemnitee shall have made
the conclusion provided for in (ii) above and such conclusion shall have been
so confirmed by the Company’s said outside counsel.


 


(c)                                  Notwithstanding
any provision of this Article to the contrary, the Company shall not be liable
to indemnify the Indemnitee under this Article of any amounts paid in
settlement of any Proceeding or claim affected without its written consent.  The Company shall not settle any Proceeding
or claim in any manner which would impose any penalty, limitation or
disqualification of the Indemnitee for any purpose without the Indemnitee’s
written consent.  Neither the Company
nor the Indemnitee will reasonably withhold their consent to any proposed
settlement.


 


6.06                           Payment.  If it is determined that Indemnitee is
entitled to indemnification not covered by defense of the claim afforded under
Section 6.05 above, payment to Indemnitee shall be made within ten (10) days
after such determination.


 


ARTICLE VII


 


Presumptions and Effect of Certain Proceedings


 


7.01                           Effect
of Other Proceedings.  The termination
of any Proceeding or of any claim, issue or matter therein, by judgment order,
settlement or conviction, or upon a plea of guilty or of nolo contendre or its
equivalent, shall not (except as otherwise expressly provided in this
Agreement) in itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in Good
Faith.


 


7.02                           Reliance
as Safe Harbor.  For purposes of any
determination of Good Faith, Indemnitee shall be deemed to have acted in Good
Faith if Indemnitee’s action is based on the records or books of account of the
Enterprise, including financial statements, or in information or records given
or reports made to the Enterprise by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by the
Enterprise.  The provisions of this
section 7.02 shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.


 


7.03                           Actions
of Others.  The knowledge an/or actions,
or failure to act, of any director, officer, employee, agent , trustee, or
fiduciary of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.


 


A-8

















 


ARTICLE VIII


 


Non-Exclusivity, Insurance, Subrogation


 


8.01                           Non-Exclusivity.  The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled under
applicable law, the Certificate of Incorporation, the by-laws, any agreement, a
vote of shareholders or a resolution of directors, or otherwise.  No amendment, alteration, recession or
replacement of this Agreement or any provision hereof shall be effective as to
Indemnitee with respect to any action taken or omitted by such Indemnitee in
Indemnitee’s Corporate Status prior to such amendment, alteration, recession or
replacement.


 


8.02                           Insurance.  The Company may maintain an insurance policy
or policies against liability arising out of this Agreement or otherwise.


 


8.03                           Subrogation.  In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and take all action necessary to secure such rights, including execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.


 


8.04                           No
Duplicate Payment.  The Company shall
not be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that Indemnitee has otherwise
actually received such payment under any insurance policy, contract, agreement
or otherwise.


 


ARTICLE IX


 


General Provisions


 


9.01                           Successors
as Assigns.  This Agreement shall be
binding upon the Company and its successors and assigns and shall insure to the
benefit of Indemnitee and the Indemnitee’s legal representatives, heirs,
executors and administrators.


 


9.02                           Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever:


 


(a)                                  the
validity, legality, and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal, or
unenforceable, that is not itself invalid, illegal, or unenforceable) shall not
in any way be affected or impaired thereby; and


 


(b)                                 to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing
any such provision held to be invalid, illegal, or unenforceable that is not
itself invalid, illegal or unenforceable) shall be 


 


A-9

















 


construed so
as to give effect of the intent manifested by the provision held invalid,
illegal or unenforceable.


 


9.03                           Headings.  The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute party of this Agreement or to affect the construction thereof.


 


9.04                           Modification
and Waiver.  No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in writing by both of the parties hereto. 
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any such provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.


 


9.05                           Notices.  All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed.


 


	
  If to
  Indemnitee, to:

  	
  Michael R.
  Minogue

  
	
   

  	
  [address]

  
	
   

  	
   

  
	
  If to the
  Company, to:

  	
  ABIOMED,
  Inc.

  
	
   

  	
  22 Cherry
  Hill Drive

  
	
   

  	
  Danvers,
  MA  01923 U.S.A.

  
	
   

  	
  Attention:
  CEO

  



 


Or to other
such addresses as may have been furnished to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.


 


9.06                           Governing
Law.  The parties agree that this
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware without application of the conflict of laws
or principles thereof.


 


IN WITNESS THEREOF, the parties
hereto have executed this Agreement on the: 5th day of April, 2004.


 


	
   

  	
  ABIOMED,
  Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M.
  Lederman

  	
   

  
	
   

  	
   

  	
  David M.
  Lederman

  
	
   

  	
   

  	
  Chairman of
  the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  
	
   

  	
  /s/

  	
  Michael R.
  Minogue

  	
   

  
	
   

  	
   

  	
  Michael R.
  Minogue

  	
   

  



 


A-10

















 


EXHIBIT B


 


AGREEMENT


 


AGREEMENT by
and between ABIOMED, INC., a Delaware corporation (the “Company”), and Michael
R. Minogue (the “Executive”), dated as of the 5th day of April, 2004.


 


The Board of
Directors of the Company (the “Board”), has determined that it is in the best
interests of the Company and its shareholders to assure that the Company will
have the continued dedication of the Executive, notwithstanding the
possibility, threat, or occurrence of a Change of Control (as defined below) of
the Company.  The Board believes it is imperative
to diminish the inevitable distraction of the Executive by virtue of the
personal uncertainties and risks created by a pending or threatened Change of
Control and to encourage the Executive’s full attention and dedication to the
Company currently and in the event of any threatened or pending Change of
Control, and to provide the Executive with compensation and benefits
arrangements upon a Change of Control which ensure that the compensation and
benefits expectations of the Executive will be satisfied and which are
competitive with those of other corporations. 
Therefore, in order to accomplish these objectives, the Board has caused
the Company to enter into this Agreement.


 


NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:


 


1.  Certain Definitions.  (a) The “Effective Date” shall be the first
date during the “Change of Control Period” (as defined in Section 1(b)) on
which a Change of Control occurs. 
Anything in this Agreement to the contrary notwithstanding, if the
Executive’s employment with the Company is terminated or the Executive ceases
to be an officer of the Company prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such termination of employment
(1) was at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control or (2) otherwise arose in connection
with or anticipation of the Change of Control, then for all purposes of this
Agreement the “Effective Date” shall mean the date immediately prior to the
date of such termination of employment.


 


(b)  The “Change of Control Period” is the period
commencing on the date hereof and ending on the second anniversary of such
date; provided, however that commencing on the date one year after the date
hereof, and on each annual anniversary of such date (such date and each annual
anniversary thereof is hereinafter referred to as the “Renewal Date”), the
Change of Control Period shall be automatically extended without any further
action by the Company or the Executive so as to terminate two years from such
Renewal Date; provided, however, that if the Company shall give notice in
writing to the Executive, at least sixty days prior to the Renewal Date,
stating that the Change of Control Period shall not be extended, then the Change
of Control Period shall expire two years from the last effective Renewal Date.


 


B-1

















 


2.             Change of Control.  For the purpose of this Agreement, a “Change
of Control” shall mean:


 


(a)           The acquisition by
any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), other than David M. Lederman or any of his affiliates (as defined in
the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of thirty percent or more of the then
outstanding shares of stock of the Company entitled to vote in the election of
directors (the “Outstanding Company Common Stock”), whether in one transaction
or in multiple transactions which in the aggregate equal or exceed thirty
percent of the Outstanding Company Common Stock; provided, however, that (i)
any acquisition by the Company or its subsidiaries, or any employee benefit plan
(or related trust) of the Company or its subsidiaries of thirty percent or more
of Outstanding Company Common Stock shall not constitute a Change of Control;
(ii) any acquisition by any individual, entity or group of beneficial ownership
of thirty percent or more but less than forty percent of the Outstanding
Company Common Stock may be deemed by the Board of Directors of the Company as
it is constituted as of the date of this Agreement (the “Incumbent Board”),
excluding any members of the Incumbent Board affiliated with the acquiror, to
not constitute a Change of Control, in the Incumbent Board’s sole and absolute
discretion; and  (iii) any acquisition
by a corporation with respect to which, following such acquisition, more than
fifty percent of the then outstanding shares of common stock of such
corporation, is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock immediately prior to such
acquisition in substantially the same proportion as their ownership,
immediately prior to such acquisition, of the Outstanding Company Common Stock,
shall not constitute a Change of Control; or


 


(b)           Individuals who, as
of the date of this Agreement, constitute the Board of Directors (the “Board”)
of the Company (the “Incumbent Board”) cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a director
subsequent to the date of this Agreement whose election, or nomination for
election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office is in connection with either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a person other than the Board; or


 


B-2

















 


c)             Approval by the
stockholders of the Company of (i) a reorganization, merger or consolidation,
in each case, with respect to which all or substantially all of the individuals
and entities who were the beneficial owners of the Outstanding Company Common
Stock immediately prior to such reorganization, merger or consolidation will
not, following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 50% of the then outstanding shares of common
stock of the corporation resulting from such a reorganization, merger or
consolidation, other than a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no “person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) acquires
30% or more of Outstanding Company Common Stock; or (ii) the sale or other
disposition of all or substantially all of the assets of the Company, excluding
a sale or other disposition of assets to a subsidiary of the Company and
excluding a sale or license of a portion of the business of the Company which
is deemed by the Incumbent Board, acting in its sole and absolute discretion,
to not constitute a Change of Control.


 


Anything in
this Agreement to the contrary notwithstanding, if an event that would, but for
this paragraph, constitute a Change of Control results from or arises out of a
purchase or other acquisition of the Company, directly or indirectly, by a
corporation or other entity in which the Executive has a greater than ten
percent direct or indirect equity interest, such event shall not constitute a
Change of Control.


 


3.             Employment Period.  Subject to the terms and conditions hereof,
the Company hereby agrees to continue the Executive in its employ for the
period commencing on the Effective Date and ending on the last day of the
twenty-fourth month following the month in which the Effective Date occurs (the
“Employment Period”).  The Executive
hereby agrees to remain in the employ of the Company for the period commencing
on the Effective Date and ending on the last day of the sixth month following
the month in which the Effective Date occurs (the “Six Month Period”).


 


4.             Terms of Employment.  (a) 
Position and Duties.  (i) Except
as provided in Section 4(c) below, during the Employment Period, (A) the
Executive’s position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the one hundred eighty-day period
immediately preceding the Effective Date and (B) the Executive’s services shall
be performed at the location where the Executive was employed immediately
preceding the Effective Date or any office or location less than thirty-five
miles from such location.


 


(ii)           During the Employment Period, and
excluding any periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote his full business time to the business
and affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive’s
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period 


 


B-3

















 


it shall not be a violation of this Agreement for the Executive to (A)
serve on corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do not
significantly interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with this
Agreement.  It is expressly understood
and agreed that to the extent that any such activities have been conducted by
the Executive prior to the Effective Date, the continued conduct of such
activities (or the conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed to interfere
with the performance of the Executive’s responsibilities to the Company.


 


(b)           Compensation.  (i) 
Base Salary.  During the
Employment Period, the Executive shall receive an annual base salary (“Annual
Base Salary”), which shall be paid at a monthly rate, at least equal to twelve
times the highest monthly base salary paid or payable to the Executive by the
Company in respect of the twelve-month period immediately preceding the month
in which the Effective Date occurs. Any increase in Annual Base Salary shall
not serve to limit or reduce any other obligation to the Executive under this
Agreement.  Annual Base Salary shall not
be reduced after any such increase and the term Annual Base Salary as utilized
in this Agreement shall refer to Annual Base Salary as so increased.


 


(ii)           Annual Bonus.  In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year during the Employment Period,
an annual bonus (the “Annual Bonus”) in cash at least equal to the average
annualized (for any fiscal year consisting of less than twelve full months or
with respect to which the Executive has been employed by the Company for less
than twelve full months) bonus (the “Average Annual Bonus”) paid or payable to
the Executive by the Company in respect of the lesser of the three fiscal years
immediately preceding the fiscal year in which the Effective Date occurs or the
number of full fiscal years for which the Executive has been employed by the
Company immediately preceding the fiscal year in which the Effective Date
occurs.  Each such Annual Bonus shall be
paid no later than the end of the third month of the fiscal year next following
the fiscal year for which the Annual Bonus is awarded, unless the Executive
shall elect to defer the receipt of such Annual Bonus pursuant to deferral
plans of the Company.


 


(iii)  At the end of the Six Month Period, if
Executive remains employed by the Company, all unvested stock options or stock
appreciation rights which Executive then holds to acquire securities from the
Company shall be immediately and automatically exercisable as of such date.


 


(iv)  Incentive, Savings and Retirement Plans.  In addition to Annual Base Salary and Annual
Bonus payable as hereinabove provided, the Executive shall be entitled to
participate during the Employment Period in all incentive, savings and
retirement plans, practices, policies and programs applicable to other peer
executives of the Company, but in no event shall such plans practices, policies
and programs provide the Executive with incentive, savings and retirement
benefits opportunities, in each case, less favorable, in the aggregate, than
the most favorable of those provided by the Company for the Executive under
such plans, practices, policies and programs as in effect at any time during
the one-year immediately preceding the Effective Date.


 


B-4

















 


(v)  Welfare Benefit Plans.  During the Employment Period, the Executive
and/or the Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company (including, without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel accident insurance plans
and programs) and applicable to other peer executives of the Company, but in no
event shall such plans, practices, policies and programs provide benefits which
are less favorable, in the aggregate, than the most favorable of such plans,
practices, policies and programs in effect at any time during the one-year
period immediately preceding the Effective Date.


 


(vi)          Expenses.  During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in the conduct of the Company’s business upon
submission of appropriate accountings in accordance with the most favorable
policies, practices and procedures of the Company in effect at any time during
the one-year period immediately preceding the Effective Date.


 


(vii)  Fringe Benefits.  During the Employment Period, the Executive
shall be entitled to fringe benefits in accordance with the most favorable
plans, practices, programs and policies of the Company in effect at any time
during the one-year period immediately preceding the Effective Date.  If at the end of the Employment Period, the
Company elects not to continue to employ Executive for reasons other than for Cause,
death or Disability, or if the Executive shall terminate employment hereunder
for Good Reason, the Company will provide to Executive up to $5,000 in fees
paid for out-placement assistance.


 


(viii)  Office and Support Staff.  During the Employment Period, the Executive
shall be entitled to an office or offices of a size and with furnishings and
other appointments, and to exclusive personal secretarial and other assistance,
at least equal to the most favorable of the foregoing provided to the Executive
by the Company at any time during the one-year period immediately preceding the
Effective Date.


 


(ix)  Vacation.  During the Employment Period, the Executive shall be entitled to
paid vacation in accordance with the most favorable plans, policies, programs
and practices of the Company as in effect at any time during the one-year
period immediately preceding the Effective Date.


 


(c)  Six Month Period.  Notwithstanding anything to the contrary in
this Section 4, during the Six Month Period, the Company’s obligations under
this Agreement are limited to employing the Executive in any capacity
reasonably assigned to Executive by the Company to assist in the transition
caused by the Change of Control at the location where the Executive was
employed immediately preceding the Effective Date or at any office or location
less than thirty-five miles from such location and providing to the Executive
compensation and benefits, as set forth in Section 4(b) hereof  in accordance with the most favorable plans,
practices, policies and programs provided by the Company for the Executive as
in effect at any time during the one year period immediately preceding the
Effective Date.


 


B-5

















 


5.             Termination of Employment.  (a)  Death
or Disability.  The Executive’s
employment shall terminate automatically upon the Executive’s death during the
Employment Period.  If the Company
determines in good faith that the Disability of the Executive has occurred
during the Employment Period (pursuant to the definition of “Disability” set forth
below), it may give to the Executive written notice in accordance with Section
11(b) of this Agreement of its intention to terminate the Executive’s
employment.  In such event, the
Executive’s employment with the Company shall terminate effective on the
thirtieth day after receipt of such notice by the Executive (the “Disability
Effective Date”), provided that, within the thirty days after such receipt, the
Executive shall not have returned to full-time performance of the Executive’s
duties.  For purposes of this Agreement,
“Disability” means the absence of the Executive from the Executive’s duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive’s legal representative (such
agreement as to acceptability not to be withheld unreasonably).


 


(b)           Cause.  The Company may terminate the Executive’s
employment during the Employment Period for “Cause”.  For purposes of this Agreement, “Cause” means (i) an act or acts
of personal dishonesty taken by the Executive and intended to result in
substantial personal enrichment of the Executive at the expense of the Company,
(ii) repeated violations by the Executive of the Executive’s obligations under
Section 4(a) of this Agreement (other than as a result of incapacity due to
physical or mental illness) which are demonstrably willful and deliberate on
the Executive’s part, which are committed in bad faith or without reasonable
belief that such violations are in the best interests of the Company and which
are not remedied in a reasonable period of time after receipt of written notice
from the Company or (iii) the conviction of the Executive of a felony involving
moral turpitude.


 


(c)           Good Reason.  The Executive’s employment may be terminated
during the Employment Period by the Executive for Good Reason.  For purposes of this Agreement, “Good Reason”
means:


 


(i)            the assignment to
the Executive of any duties inconsistent in any respect with the Executive’s
position (including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by Section 4(a) of this
Agreement, or any other action by the Company which results in a diminution in
such position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;


 


(ii)           any failure by the
Company to comply with any of the provisions of Section 4(b) of this Agreement,
other than an isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;


 


B-6

















 


(iii)          any failure by the
Company to fulfill its obligations to the Executive during the Six Month
Period, as set forth in Section 4(c) of this Agreement, other than an isolated,
insubstantial and inadertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the Executive;


 


(iv)          the Company’s
requiring the Executive to be based at any office or location other than that
described in Section 4(a)(i)(B) hereof;


 


(v)           any purported
termination by the Company of the Executive’s employment otherwise than as
expressly permitted by this Agreement; or


 


(vi)          any failure by the
Company to comply with and satisfy Section 10(c) of this Agreement.


 


Notwithstanding
the foregoing, during the Six Month Period, “Good Reason” shall mean (iii),
(iv), (v) or (vi) above only.  For
purposes of this Section 5(c), any good faith determination of “Good Reason”
after the Six Month Period made by the Executive shall be conclusive.


 


(d)           Notice of Termination.  Any termination by the Company for Cause or
without Cause or by the Executive for Good Reason shall be communicated by
Notice of Termination to the other party hereto given in accordance with
Section 11(b) of this Agreement.  For
purposes of this Agreement, a “Notice of Termination” means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, if applicable, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of the Executive’s employment under the provision so indicated, and (iii) if
the Date of Termination (as defined below) is other than the date of receipt of
such notice, specifies the termination date (which date shall be not more than
fifteen days after the giving of such notice). 
The failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company
hereunder or preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive’s or the Company’s rights hereunder.


 


(e)           Date of Termination.  “Date of Termination” means the date of
receipt of the Notice of Termination or any later date specified therein, as
the case may be; provided  however, that
(i) if the Executive’s employment is terminated by the Company other than for
Cause, death or Disability, the Date of Termination shall be the date on which
the Company notifies the Executive of such termination and (ii) if the Executive’s
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.


 


B-7

















 


6.             Obligations of the Company upon
Termination.


 


(a)           Death.  If the Executive’s employment is terminated
by reason of the Executive’s death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive’s legal
representatives under this Agreement, other than payment of the sum of the
following amounts:  (i) the Executive’s
Annual Base Salary through the Date of Termination to the extent not
theretofore paid, (ii) the product of (A) the greater of (x) the Annual Bonus
paid or payable (and annualized for any fiscal year consisting of less than
twelve full months or for which the Executive has been employed for less than
twelve full months) to the Executive for the Company’s most recently completed
fiscal year, and (y) the Average Annual Bonus and (B) a fraction, the numerator
of which is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365, and (iii) any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) and any accrued bonus amounts or vacation pay, in each case,
to the extent not yet paid by the Company (the amounts described in
subparagraphs (i), (ii), and (iii) are hereafter referred to as “Accrued
Obligations” and shall be paid to the Executive’s estate or beneficiary, as
applicable, in a lump sum in cash within sixty days of the Date of
Termination.  Subject to the provisions
of Section 9 hereof, but, otherwise, anything herein to the contrary
notwithstanding, the Executive’s family shall be entitled to receive benefits
at least equal to the most favorable benefits provided by the Company to
surviving families of peer executives of the Company under such plans,
programs, practices and policies relating to family death benefits, if any, as
in effect with respect to other peer executives and their families at any time
during the one year period immediately preceding the Effective Date.


 


(b)           Disability.  If the Executive’s employment is terminated
by reason of the Executive’s Disability during the Employment Period, this
Agreement shall terminate without further obligations of the Company to the
Executive, other than for payment of the Accrued Obligations (which shall be
paid in a lump sum in cash within sixty days of the Date of Termination).  Subject to the provisions of Section 9
hereof, but, otherwise, anything herein to the contrary notwithstanding, the
Executive shall be entitled after the Disability Effective Date to receive
disability and other benefits at least equal to the most favorable of those
provided by the Company to disabled executives and/or their families in
accordance with such plans, programs, practices and policies relating to
disability, if any, as in effect with respect to other peer executives and
their families at any time during the one year period immediately preceding the
Effective Date.


 


(c)           Cause, Other than for Good Reason.  If the Executive’s employment shall be
terminated by the Company for Cause or by the Executive other than for Good
Reason (and other than by reason of his death or disability) during the
Employment Period, this Agreement shall terminate without further obligations
of the Company to the Executive other than the obligation to pay to the
Executive Annual Base Salary through the Date of Termination, plus the amount
of any compensation previously deferred by the Executive and any accrued and
awarded bonus amounts or vacation pay, in each case, to the extent theretofore
unpaid.  In such case, such amounts
shall be paid to the Executive in a lump sum in cash within thirty days of the
Date of Termination, except that accrued and awarded bonus amounts, if any,
shall be paid as previously 


 


B-8

















 


scheduled at the time of the award.  The Executive shall, in such event, also be entitled to any
benefits required by law that are not otherwise provided by this Agreement.


 


(d)           Good Reason; Other Than for Cause
or Disability.  If, during the
Employment Period, the Company shall terminate the Executive’s employment other
than for Cause, death or Disability, or if the Executive shall terminate
employment under this Agreement for Good Reason:


 


(i)            the Company shall
pay to the Executive in a lump sum in cash within sixty days after the Date of
Termination the aggregate of the following amounts:


A.            all Accrued
Obligations; and


B.            the amount (such
amount shall be hereinafter referred to as the “Severance Amount”) equal to the
product of (I) two and ninety-nine one-hundredths (2.99) and (II) the Executive’s
“base amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of
1986, as amended (the “Code”).


 


(ii)           the Company shall
timely pay and provide, for eighteen months from the Date of Termination,
medical benefits to the Executive and/or the Executive’s family at least equal
to those which would have been provided in accordance with the applicable plans
(including the Company’s 401(k), match and profit-sharing plans), programs,
practices and policies described in Section 4(b)(v) of this Agreement as if the
Executive’s employment had not been terminated in accordance with the most
favorable plans, practices, programs or policies of the Company as in effect
and applicable generally to other peer executives and their families during the
one year period immediately preceding the Effective Date, provided, however,
that if the Executive becomes re-employed with another employer and is eligible
to receive medical and dental benefits under another employer provided plan,
the medical and dental benefits described herein shall be secondary to those
provided under such other plan during such applicable period of eligibility and
provided, further, that if any Company plan would not allow Executive to
participate, the Company shall provided to Executive comparable tax-adjusted
payments of an equivalent amount; and


 


(iii)          to the extent not
theretofore paid or provided, the Company shall timely pay or provide to the
Executive and/or the Executive’s family any other amounts or benefits required
to be paid or provided or which the Executive and/or the Executive’s family is
eligible to receive pursuant to this Agreement and under any plan, program,
policy or practice or contract or agreement of the Company as in effect and
applicable generally to other peer executives of the Company and their
families, including up to $5,000 in fees paid for out-placement assistance
(such other amounts and benefits shall be hereinafter referred to as the “Other
Benefits”); and


 


(iv)          all remaining
unvested stock options or stock appreciation rights which Executive then holds
to acquire securities from the Company shall be immediately and automatically
exercisable as of the Date of Termination; and


 


B-9

















 


(v)           the Company shall
pay the Executive in cash a lump sum equal to the amounts accrued on behalf of
the Executive, but not yet vested, under the Company’s profit-sharing plan.


 


7.             Non-exclusivity of Rights.  Except as provided in Section 6, nothing in
this Agreement shall prevent or limit the Executive’s continuing or future
participation in any benefit, bonus, incentive or other plans, programs,
policies or practices, provided by the Company and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any other agreements with the Company.  Amounts which are vested benefits or which
the Executive is otherwise entitled to receive under any plan, policy, practice
or program of the Company at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program except as
explicitly modified by this Agreement.


 


8.             Full Settlement.  (a) 
The Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the Executive or
others.  In no event shall the Executive
be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the provisions
of this Agreement and, except as provided in Section 6(d)(ii), such amounts
shall not be reduced whether or not the Executive obtains other
employment.  The Company agrees to pay
promptly as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement, unless a court of competent jurisdiction determines that the
Executive made such effort in bad faith), plus in each case interest at the
applicable Federal rate provided for in Section 7872(f)(2)(A) of the Internal
Revenue Code of 1986, as amended (the “Code”).


 


(b)           If there shall be any dispute between
the Company and the Executive (i) in the event of any termination of the
Executive’s employment by the Company, whether such termination was for Cause,
or (ii) in the event of any termination of employment by the Executive, whether
Good Reason existed, then, unless and until there is a final, nonappealable
judgment by a court of competent jurisdiction declaring that such termination
was for Cause or that the determination by the Executive of the existence of
Good Reason was not made in good faith, the Company shall pay all amounts, and
provide all benefits, to the Executive and/or the Executive’s family or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to Section 6(d) as though such termination were by the Company
without Cause, or by the Executive with Good Reason; provided, however, that
the Company shall not be required to pay any disputed amount pursuant to this
paragraph except upon receipt of an undertaking by or on behalf of the
Executive to repay all such amounts to which the Executive is ultimately
adjudged by such court not to be entitled.


 


B-10

















 


9.             Certain Additional Payments by
the Company.


 


(a)           Anything in this Agreement to the
contrary notwithstanding, in the event that it shall be determined that any
payment or distribution by the Company to or for the benefit of the Executive,
whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 9 (a “Payment”), would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the “Excise Tax”), the Company shall make an additional payment
with respect to such Excise Tax (a “Gross-Up Payment”) to the Executive in an
amount such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.


 


(b)           Subject to the provisions of Section
9(c), all determinations required to be made under this Section 9, including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
shall be made by Arthur Andersen LLP (or its successor), unless such firm shall
be the accounting firm of the individual, entity or group effecting the Change
of Control or any affiliate of the Company at the Date of Termination, in which
case such determinations shall be made by an accounting firm of national
standing agreed to by the Company and the Executive, or, if the Company does
not so agree within 10 days of the Date of Termination, such an accounting firm
shall be selected by the Executive, (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and the Executive within
fifteen business days of the date such firm is selected or such earlier time as
is requested by the Company.  All fees
and expenses of the Accounting Firm shall be borne solely by the Company.  Any Gross-Up Payment, as determined pursuant
to this Section 9, shall be paid by the Company to the Executive within five
days of the receipt of the Accounting Firm’s determination.  If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall furnish the Executive with a
written opinion that failure to report the Excise Tax on the Executive’s
applicable federal income tax return would not result in the imposition of a
negligence, accuracy-related or similar penalty.  Any such determination by the Accounting Firm shall be binding
upon the Company and the Executive.  As
a result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made (“Underpayment”), consistent with the calculations
required to be made hereunder.  In the
event that the Company exhausts its remedies pursuant to Section 9(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine that amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of the Executive.


 


B-11

















 


(c)           The Executive shall notify the
Company in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Gross-Up
Payment.  Such notification shall be
given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid.  The Executive shall not pay such
claim prior to the expiration of the 30-day period following the date on which
it gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due).  If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:


 


(i)  give the company any
information reasonably requested by the Company relating to such claim,


 


(ii)  take such action in
connection with contesting such claim as the Company shall reasonably request
in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company,


 


(iii)  cooperate with the
Company in good faith in order effectively to contest such claim, and


 


(iv)  permit the Company to participate in any
proceedings relating to such claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and
hold the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and expenses.  Without limitation on the foregoing
provisions of this Section 9(c), the Company shall control all proceedings
taken in connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at its sole option,
either direct the Executive to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the Executive agrees to
prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall indemnify
and hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. 
Furthermore, the Company’s control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.


 


B-12

















 


(d)           If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 9(c), the
Executive becomes entitled to receive any refund with respect to such claim,
the Executive shall (subject to the Company’s complying with the requirements
of Section 9(c)) promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto).  If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.


 


10.           Successors.  (a) 
This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of
and be enforceable by the Executive’s legal representatives.


 


(b)           This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns.


 


(c)           The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. 
As used in this Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.  In addition, the
Executive shall be entitled, upon exercise of any outstanding stock options or
stock appreciation rights of the Company, to receive in lieu of shares of the
Company’s stock, shares of such stock or other securities of such successor as
the holders of shares of the Company’s stock received pursuant to the terms of
the merger, consolidation or sale.


 


11.           Miscellaneous.  (a) 
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, without reference to principles of
conflict of laws.  The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect.  This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.


 


(b)           All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:


 


B-13

















 


If to the
Executive:


 


Michael R.
Minogue


c/o ABIOMED,
Inc.


22 Cherry Hill
Drive


Danvers, MA
01923


 


If to the
Company:


 


ABIOMED, Inc.


22 Cherry Hill
Drive


Danvers,
MA  01923


 


Attention:  CFO or Compliance Officer


 


or to such other address as
either party shall have furnished to the other in writing in accordance
herewith.  Notices and communications
shall be effective when actually received by the addressee.


 


(c)           The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.


 


(d)           The Company may withhold from any
amounts payable under this Agreement such Federal, state or local taxes as
shall be required to be withheld pursuant to any applicable law or regulation.


 


(e)           The Executive’s or the Company’s
failure to insist upon strict compliance with any provision hereof shall not be
deemed to be a waiver of such provision or any other provision thereof.


 


(f)            This Agreement and the employment
agreement between the Company and the Executive (the “Employment Agreement”)
contain the entire understanding of the Company and the Executive with respect
to the subject matter hereof and by entering into this Agreement the Executive
waives all rights he may have under the Company’s separation policy, provided
that if the Company’s separation policy would provide greater benefits to the
Executive than this Agreement, than the Executive may elect to receive benefits
under the Company’s separation policy in lieu of the benefits provided
hereunder.  In the event of any conflict
between a provision of the Employment Agreement and a provision of this Agreement,
the provision of this Agreement shall control. 
Without limiting the generality of the foregoing, it is expressly
acknowledged that the definition of “Cause” in this Agreement shall be
controlling in all respects with respect to Executive’s employment following
the Effective Date.


 


(g)           The Executive and the Company
acknowledge that, except as may otherwise be provided under the Employment
Agreement, prior to the Effective Date and following the end of the Employment
Period, the employment of the Executive by the Company is “at will” and may 


 


B-14

















 


be terminated by either the Executive or the Company at any time.  Moreover, if prior to the Effective Date,
the Executive’s employment with the Company terminates, then the Executive
shall have no further rights under this Agreement.  Notwithstanding anything contained herein, if, during the
Employment Period, the Executive shall terminate employment with the Company
other than for Good Reason, the Executive shall have no liability to the
Company.


 


(h)           As
used in this Agreement, “Company” shall mean the Company as hereinbefore
defined and any successor to its business or assets as aforesaid which assumes
and agrees to perform this Agreement by operation of law, or otherwise.


 


IN WITNESS WHEREOF, the Executive has
hereunto set his hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed in its name on
its behalf, all as of the day and year first above written.


 


 


	
   

  	
  ABIOMED,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M.
  Lederman

  	
   

  
	
   

  	
  Name: David
  M. Lederman

  
	
   

  	
  Title:
  Chairman of the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/

  	
  Michael R.
  Minogue

  	
   

  
	
   

  	
   

  	
  Michael R.
  Minogue

  	
   

  
	
   

  	
   

  
					



 


B-15

















 


EXHIBIT C


 


ABIOMED, INC.


 


NONDISCLOSURE AND
NON-COMPETITION Provisions


Under Employment
Agreement Between


Abiomed, Inc. and
Michael R. Minogue


 


1.  Loyalty; Conflicts of Interest.  Executive agrees that he/she shall be a
full-time employee, devoting his/her entire time, undivided loyalty and best
efforts to the business of ABIOMED. 
Executive shall not during the term of his/her employment be engaged in
any other occupation, professional or business activity.  As a representative of ABIOMED, Executive further
agrees to always conduct himself in accordance with the highest ethical and
moral standards during both working and non-working hours.  Attached to this Agreement as Appendix A is
ABIOMED’s “Conflicts of Interest Policy.” 
By executing this Agreement, Executive represents and warrants that
he/she has reviewed carefully the Policy and Guidelines and agrees to abide by
the Policy and Guidelines, as they may be updated and modified by ABIOMED from
time to time.


 


2.             Protection of Proprietary Information.
 (a) 
ABIOMED has developed or acquired materials and information (whether or
not reduced to writing, patentable or protectable by copyright) relating to
ABIOMED’s operating procedures, products, methods, service techniques,
engineering and manufacturing data machines, devices, apparatus, “know-how”,
formulae, software, processes, plans, designs, specifications, trade secrets,
company data regarding costs, profits, markets and sales, customer lists, plans
for present and future research, development and marketing, and other
proprietary information not available to the public (collectively “Proprietary
Information”) which gives it a special competence in its various fields of
endeavor, all of which have been acquired at considerable expense to ABIOMED.


 


(b)  Executive recognizes that ABIOMED is engaged
in a continuous program of research and development of such Proprietary
Information.  Executive understands that
as part of his/her employment he/she is expected to make contributions of value
to ABIOMED, including the development of Proprietary Information.  He acknowledges that his/her employment
creates a relationship of confidence and trust between him/herself and ABIOMED
with respect to information of a confidential nature which is discovered, made
known to, or learned by him/her during the period of his/her employment,
including Proprietary Information.


 


(c)  Executive agrees to promptly disclose to
ABIOMED all inventions conceived or put to practice while employed at ABIOMED,
regardless of whether the development of the invention was funded by ABIOMED or
by an external entity, government or private.


 


(d)  Executive will not without the express
authorization from an authorized ABIOMED officer, during or after the term of
his/her employment, disclose any Proprietary Information, or anything relating
to it, to any person other than authorized ABIOMED personnel.  


 


C-1

















 


Nor shall Executive use any such information for his/her personal
benefit or disclose or use for his/her personal benefit any information
furnished by a third party to ABIOMED in confidence.


 


(e)  Executive agrees that in the event of the
termination of his/her employment for any reason, he/she will deliver to
ABIOMED and shall not take with him/her, all documents and materials of any
nature pertaining to any Proprietary Information.  Executive shall execute a certificate in the form of Appendix B,
at the time of termination of employment confirming compliance with the
requirements of this Section and other provisions of this Agreement relating to
the treatment of Proprietary Information.


 


3.  Assignment of Proprietary Information.  (a) 
Executive agrees that he/she will promptly disclose to ABIOMED, or its
assigns, all discoveries, processes, software, formulae, data, know-how and
techniques, whether or not patentable or protectable by copyright, made or
conceived, first reduced to practice, or learned by him/her, either alone or
jointly with others, during the period of his/her employment which (i) relate
to or are useful in the business of ABIOMED, or (ii) are conceived, made or
worked on at the expense of, or during Executive’s normal working hours for,
ABIOMED or using any resources or materials of ABIOMED, or (iii) arise out of
tasks assigned to him/her by ABIOMED, or (iv) are within the scope of his/her
employment by ABIOMED (collectively, “Proprietary Inventions”).


 


(b)  All Proprietary Inventions shall be the sole
property of ABIOMED and its assigns, and ABIOMED and its assigns shall be the
sole owner of all patents, copyrights and other rights in connection
therewith.  In consideration of his/her
employment by ABIOMED and regardless of any change in Executive’s salary or the
nature of Executive’s employment, Executive hereby assigns to ABIOMED, or its
assigns, Executive’s entire right, title and interest in and to any and all
Proprietary Inventions.


 


(c)  Executive, at the expense of ABIOMED, agrees
to assist ABIOMED and its assigns in every proper way to obtain and enforce
patents, copyrights and other intellectual property rights on Proprietary
Inventions in any and all countries.  To
that end, Executive agrees to execute all papers, and perform all acts
necessary to make this Agreement effective as to any particular Proprietary
Inventions, application for letters patent, and other rights and interests of
ABIOMED or its assigns, including the giving of testimony without expense to
Executive and without further compensation except as provided for in accordance
with ABIOMED’s “Patent Awards Policy” as it may be amended from time to time, a
copy of which is attached hereto as Appendix C and made a part of this
Agreement by reference.  The obligations
of Executive under this paragraph (c) shall continue beyond the termination of
his/her employment with ABIOMED.


 


(d)  As a matter of record, and in order to avoid
disputes over the application of Sections 5 and 6, Executive has attached to
this Agreement, as Appendix D, a complete list of all inventions made,
conceived, or first reduced to practice by Executive, alone or jointly with
others, prior to his/her employment with ABIOMED, that are not described in a
publication or patent application in existence on the date of this Agreement,
and that Executive desires, and ABIOMED agrees to exclude from the effect of
this Agreement.  If no such list is
attached to this 


 


C-2

















 


Agreement, he/she represents that he/she has no such inventions and
improvements at the time of signing this Agreement.


 


(e)  If any application for any United States or
foreign patent, copyright or other intellectual property rights related to or
useful in the business of ABIOMED shall be filed by or for Executive within a
period of one (1) year after the termination of his/her employment, the subject
matter covered thereby shall be presumed to have been conceived during his
employment with ABIOMED.


 


4.  Covenant Not to Compete.  (a) 
Noncompetition.  Executive
recognizes that ABIOMED is engaged in the research, development, manufacturing
and marketing of proprietary products in the United States and throughout the
world, and that it is of utmost importance to ABIOMED to maintain the
confidentiality of its Proprietary Information and preserve the good-will of
its business.  In order to safeguard
that Proprietary Information and good-will, Executive understands that it is a
condition of his/her employment not to compete with ABIOMED, in the United
States or any other country, for a period of time following the termination of
his/her employment, as set forth in further detail below.


 


(b)  Executive agrees that for a period of two
years following the termination of his/her employment, he/she will not directly
or indirectly, for his/her own account or for any other person, as agent,
employee, officer, director, trustee, consultant, owner, partner, or
shareholder, or any other capacity:


 


 (i) 
hire or attempt to hire or assist any other person in hiring or
attempting to hire any employee of ABIOMED; or


 


(ii)  encourage or assist any other person in encouraging
any director, officer, employee, agent, consultant or any other person
affiliated with ABIOMED to terminate or alter his/her or its relationship with
ABIOMED; or


 


(iii)  encourage or assist any other person in
encouraging any customer or supplier of ABIOMED to terminate or alter its
relationship with ABIOMED; or


 


                (iv)  Sell or market or assist any other person in
selling or marketing any product or service that competes, directly or
indirectly with any product or service manufactured, sold or under development
by ABIOMED at the time Executive’s employment with ABIOMED is terminated; or


 


(v)  research, develop or manufacture or assist
any other person in researching, developing or manufacturing any product or
service that competes with any product or service conceived, manufactured, sold
or under development by ABIOMED at the time Executive’s employment with ABIOMED
is terminated.


 


(c)  In order to assure that Executive does not
breach any of the foregoing provisions, Executive agrees that for a period of
two years following the termination of his/her Employment 


 


C-3

















 


he will not accept employment with, advise, provide consulting services
to or acquire any interest in (other than an investment interest of less than
5% of the total outstanding shares of a publicly traded company) any business
that directly or indirectly competes with any product or service conceived,
manufactured, sold or under development by ABIOMED without first obtaining the
written consent of ABIOMED.  ABIOMED
shall be permitted to withhold such consent in its sole discretion, unless
Executive and the prospective employer are able to provide ABIOMED with
assurances reasonably satisfactory to ABIOMED in its sole discretion that Executive
will not be assisting the prospective employer in any of the prohibited
endeavors listed in paragraph (b) above.


 


(d)  Executive has carefully read and considered
the restrictions in this Section 7 and agrees that the restrictions are fair
and reasonable and are reasonably required for the protection of the interests
of ABIOMED.


 


5.             Conflicting Agreements.  Executive represents and warrants that
he/she is free to enter into this Agreement, that Executive has not made and
will not make any agreements (oral or in writing) in conflict with this
Agreement, and will not disclose to ABIOMED, not use for ABIOMED’s benefit, any
trade secrets or confidential information that is the property of any other
party now or hereafter in Executive’s possession.  Executive represents that he/she has provided to ABIOMED, copies
of all employment, proprietary information and other similar agreements to
which he/she is a party that are currently in effect.


 


6.             Remedies.  In order to avoid irreparable injury to
ABIOMED, in the event of any breach or threatened breach by Executive of the
provisions of this Agreement, ABIOMED shall be entitled to an injunction
restraining such breach.  Nothing herein
shall be construed as prohibiting ABIOMED from pursuing any other remedies available
to ABIOMED for such breach or threatened breach, including the recovery of
damages from Executive.  Executive
agrees that in the event that he/she breaches his/her duty of loyalty to
Company or any of his/her covenants in Sections 5 through 7, in addition to any
and all other remedies which ABIOMED may have available to it, ABIOMED will be
entitled, at its election, to recover from Executive (i) the value of anything
belonging to ABIOMED which Executive uses in breach of such duty, or (ii) any
benefit which Executive receives as a result of his/her breach, or its
proceeds, and ABIOMED shall also be entitled to recover from Executive the
amount of damages thereby caused.  In
the event of termination of Executive’s employment for breach of any of the covenants
under this Employment Agreement, Executive agrees that he shall thereby forfeit
all rights granted to him under any stock option, profit participation, bonus
or deferred compensation arrangement of ABIOMED then existing in which he/she
participates, to the extent permitted by law.


 


	
  AGREED TO:

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/ Michael
  R. Minogue

  
	
   

  	
  Michael R.
  Minogue

  



 


C-4

















 


	
   

  	
  ABIOMED, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M.
  Lederman

  
	
   

  	
   

  	
  Chairman of
  the Board

  



 


C-5

















 


APPENDIX A


 


ABIOMED, INC.


CONFLICT OF INTEREST
POLICY


 


GENERAL:


 


Each employee
of ABIOMED is expected to act in the best interest of ABIOMED and to refrain
from placing himself or herself in the position that could produce a conflict
between his or her interest and the interests of ABIOMED or any employee
benefit plan or trust funded by ABIOMED. 
It is the duty of all employees to act in good faith at all times and
not to utilize their employment for private personal advantage.


 


This policy,
while not covering every conceivable area of conflict of interest, is intended
to review and restate certain broad ethically sound principles of conduct that
are to be used as guidelines whenever a question may arise.  ABIOMED’s “Guidelines of Company Principles
and Practices” are made herein part of the Schedule by reference.


 


As used
herein, the term ABIOMED shall mean ABIOMED, Inc. and its affiliates, the
ABIOMED Limited Partnership, and any employee benefit plan or trust funded by
ABIOMED.  The term “member of immediate
family” shall mean the employee’s spouse and a relative of the employee or of
his or her spouse living in the employee’s household.  A person, firm, or corporation which acts for or represent a
supplier of goods and services in the sale of such goods and services to
ABIOMED shall also be deemed to be doing business with ABIOMED.


 


POLICY GUIDELINES:


 


1.             No official or employee of ABIOMED
may serve as an officer, employee, or director of or consultant to any business
entity which does business with or is competitive with ABIOMED, unless prior
approval is obtained from the President of ABIOMED.


 


2.             No official or employee of ABIOMED
or member of his or her immediate family may accept, directly or indirectly,
from any person, firm, or corporation doing business with ABIOMED, any money,
loans (except loans from banks or other lending institutions in the normal
course of their business) or any gift or gratuity, favor or service, which
might conceivably tend to induce him or her to violate his or her duties to
ABIOMED.  The foregoing is not intended
to prohibit the acceptance of promotional or advertising items marked with the
name of the donor, or items distributed by donors to all of their customers.


 


3.             No official or employee of
ABIOMED  or member of his or her
immediate family may have any direct or indirect interest in any business
entity doing business with ABIOMED or in any business in which ABIOMED may
hereafter become engaged if such interest represents a substantial proportion
of such business entity.  In any case
where a direct or indirect interest in any such business entity exists, the
same must be disclosed to, and approved in writing by the 


 


C-6

















 


President of ABIOMED.  There
shall be excluded from the foregoing prohibition any direct or  indirect interest in any corporation (a)
which is publicly owned; and (b) whose securities are actively traded on any
stock exchange or on any over-the-counter market; and (c) in which such officer
or employee and members of his or her immediate family own less that 1% of the
outstanding shares of each class of equity securities.


 


4.             No official or employee of ABIOMED
may utilize the services of any person employed by ABIOMED for improvement or
maintenance of his or her property on Company time.


 


5.             No ABIOMED products or property
shall be sold by ABIOMED to any person employed by ABIOMED except through
channels and pursuant to policies authorized by the President of ABIOMED.


 


 


	
   

  	
  APPROVED:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/

  	
   

  	
   

  
	
   

  	
  Chief
  Executive Officer

  
	
   

  	
  Date:  March, 1992

  



 


C-7

















 


APPENDIX B


 


ABIOMED, Inc.


 


ACKNOWLEDGMENT UPON
TERMINATION OF EMPLOYMENT


 


I have re-read
and understand my obligations under Paragraph 2 of the Nondisclosure and
Non-competition Provisions that I have agreed to with ABIOMED, Inc. and will
abide therewith.


 


DEFINITIONS.


 


The following
definitions shall form an integral part of this Acknowledgment.


 


ABIOMED.
ABIOMED, Inc., and except where context otherwise requires, its affiliates.


 


Affiliate.  Means any business entity controlled by,
controlling or under common control with ABIOMED, other than ABIOMED Limited
Partnership.


 


Trade Secrets.  Concepts, devices, designs, developments,
disclosures, discoveries, formulae for chemical compounds, ideas, improvements,
inventions, know-how, materials, formulations, methods, processes, research and
development projects and results, specifications, systems, technical data, and
any other technical information concerning the identity of actual or
prospective customers or suppliers, business and marketing plans and
strategies, all whether written or unwritten, and whether patentable or not.


 


Related Materials.  Any and all documentation, memoranda, notebooks,
photos, sketches, prints, drawings, research materials, charts, graphs,
machinery, prototypes, tools, written material, and plans.


 


Partnership.  ABIOMED Limited Partnership, a Massachusetts
limited partnership.


 


Proprietary
Information. 
All Trade Secrets and Related Materials, plus such financial data,
statistical data, marketing data, data of all kinds, production and other
costs, salaries, and any other information dealing with business operations or
proposed business activities which Executive knows or has reason to know are
intended by ABIOMED to remain confidential.


 


OWNERSHIP,
ASSIGNMENT, AND DISCLOSURE OF TRADE SECRETS,

RELATED MATERIALS, PROPRIETARY INFORMATION, AND PATENTS.


 


(a)           Acknowledgment:  Executive recognizes that ABIOMED is or will
be engaged in highly competitive business in which the protection of its and
the Partnership’s Trade Secrets, Related Materials, Proprietary Information,
and Patents is essential to the success of ABIOMED.


 


C-8

















 


(b)           Prior Inventions:  As a matter of record, and in order to avoid
disputes over the applications of the Paragraph 9, Executive attaches to this
Agreement as Schedule B, a complete list of all inventions made, conceived, or
first reduced to practice alone or jointly with others, prior to his
employment, that are not, and will not be, described in a publication or patent
application in existence on the effective date of this Agreement, and that
Executive wants to exclude from the effect of this


 


Agreement.  If Executive has no such Inventions as of
the effective date of this Agreement, Executive should represent that it has no
such Inventions where indicated on Schedule B.


 


(c)           Ownership of Trade Secrets, Related Materials, and
Proprietary Information: 
Executive acknowledges and agrees that ABIOMED and its successors and
assigns are the sole, absolute, unqualified, and exclusive owner of all Trade
Secrets, Related Materials, and Proprietary Information learned, supplied,
developed, or conceived by Executive during Executive’s employment with
ABIOMED, even if learned or developed with, by, or from other sources.  Executive also agrees that he/she will not
use for personal benefit during or after employment with ABIOMED any
information relating to Trade Secrets, Related Materials, or Proprietary
Information owned or controlled by ABIOMED or the Partnership and acquired
during employment at ABIOMED.


 


(d)           Assignment of Trade Secrets, Related Materials,
Proprietary Information, and Patents:  In consideration of his/her employment by ABIOMED and the salary
or wages to be paid or being paid to Executive and regardless of any change in
Executive’s salary or the nature of Executive’s employment, Executive hereby
assigned to ABIOMED (or to an Affiliate as agent for the Partnership, as
ABIOMED, the Affiliate and the Partnership shall agree), his/her entire right,
title, and interest in and to any and all Trade Secrets, Related Materials, and
Proprietary Information (i) originated with, learned, acquired, or developed by
Executive solely or jointly with others, whether on company time or his/her
own, during the period of employment with ABIOMED, or (ii) created or developed
using ABIOMED’s resources or materials, or (iii) suggested by any work which
Executive has done, is doing, or may do, for ABIOMED, so far and only so far as
the same relate to or may be useful in the business of ABIOMED as now or at
anytime carried on, including experimental or research work.


 


(e)           Assistance in Prosecution of Patents, Etc.  ABIOMED or its assigns, at their expense,
shall be entitled to procure letters patent, domestic or foreign, or
copyrights, on any of the Trade Secrets, Related Materials, and Proprietary
Information above assigned, in their own name. 
Executive shall execute all documents necessary to permit ABIOMED or its
assigns to 


 


C-9

















 


obtain such letters patent or copyrights, and will cooperate fully in
regard to such person obtaining or attempting to obtain such letters, patents, or
copyrights, Executive further agrees to sign all papers, take all rightful
oaths, and perform all acts necessary to make this Agreement effective as to
any particular Trade Secret, Related Material, Proprietary Information,
Application for Letters Patent, domestic or foreign, including any extension,
division or reissues thereof, and will do all lawful acts to protect the
patents, copyrights, and other rights and interests of ABIOMED, an Affiliate,
or the Partnership, including the giving of testimony without expense to
Executive and without further compensation except as provided for in accordance
with ABIOMED’s “Patent Awards Policy”, a copy of which is attached hereto as
Schedule C and made a part of this Agreement by reference.


 


(f)            Non-Disclosure of Trade Secrets, Related Materials,
and Proprietary Information: 
Executive agrees that at no time, whether during Executive’s employment
by ABIOMED or at any time thereafter, and regardless of the reason for the
termination of Executive, shall Executive disclose any Trade Secret, Related
Materials, or Proprietary Information owned or controlled by ABIOMED or the
Partnership to any person, firm, government entity, corporation, association,
or entity without the prior written consent of ABIOMED, the Affiliate or the
Partnership, whichever is authorized to permit such disclosure, nor shall
Executive disclose any Trade Secrets, Related Materials, or Proprietary
Information furnished to ABIOMED or Partnership under confidential or
proprietary contracts or agreements with any other person, firm, government
agency, or entity.


 


(h)           Acknowledgment Upon Termination of Employment:  At the time of Executive’s termination of
employment with ABIOMED, regardless of the circumstances or cause of said
termination, Executive shall execute Executive’s standard Termination
Certificate, a copy of which is attached hereto as Schedule D, and made a part
hereof as reference, which confirms the substance of these provisions.


 


I certify that
in accordance with the terms of said Agreement, I have disclosed to ABIOMED any
and all inventions, formulas, methods, materials formulations, devices, ideas,
concepts, developments, research results, discoveries, and improvements,
patentable or unpatentable, originating with, acquired or developed by me
solely or jointly with others, during the course of my employment with ABIOMED.


 


C-10

















 


I certify that
all Proprietary Information, Trade Secrets, and Related Materials that are the
property of employers previous to my employment with ABIOMED, were not
disclosed to ABIOMED or any of its Affiliates, nor were these used during my
employment at ABIOMED.


 


I further
certify that I have not in the past, and will not in the future, use for my own
benefit or disclose to any person, firm, government agency, corporation,
association, or entity any Trade Secret, Related Material, or Proprietary
Information owned or controlled by ABIOMED without the prior written consent of
ABIOMED.  Neither have I in the past nor
will I in the future, disclose any Trade Secret, Related Material, or
Proprietary Information furnished to ABIOMED under confidential or proprietary
contracts or agreements with any other person, firm, government agency or
entity, except to such extent as has been necessary and permitted in the
original course of performance of my duties as an employee of ABIOMED.


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
  Executive

  	
   

  	
  Date

  	
   

  



 


C-11

















 


APPENDIX C


 


ABIOMED, INC.


 


PATENT AWARDS POLICY
(Effective March 1, 1992)


 


POLICY:


 


The purpose of
this policy is to recognize employees’ initiative, creativity, engineering and
scientific achievement by granting awards for the filing of patent applications
and upon issuance of U.S. Letters Patent.


 


SCOPE:


 


All employees
are eligible to receive awards for U.S. Patent Applications filed and for U.S.
Patents issued on inventions made and disclosed as a result of employment at
ABIOMED.


 


APPLICATION FILED:


 


An award will
be made to the inventor when an invention is protected by an application to the
U.S. Patent Office on behalf of ABIOMED, or on behalf of the United States
Government.  The award will be:


 


a.             In the case of one inventor -
$250.00.


 


b.             In the case of two or more
co-inventors - $500.00


 


divided
equally by the number of inventors.


 


PATENT GRANTED:


 


An additional
award will be made to the inventor when the patent is granted to ABIOMED or its
assignee, or to the United States Government, or its assignee.  The award will be:


 


a.             In the case of one inventor -
$250.00.


 


b.             In the case of two or more
co-inventors - $500.00


 


divided
equally by the number of inventors.


 


DISCLOSURE
REQUIREMENTS:


 


The disclosure
must be full, complete, novel, clear, meeting procedural requirements and be
considered by ABIOMED to be patently meritorious.


 


C-12

















 


The disclosure
must be a progressive contribution to the scientific community which is
potentially or actually profitable to ABIOMED or the fulfillment of a
contractual obligation.  Special
attention will be given to those inventions which have been actually reduced to
practice.


 


The disclosure
must meet any applicable contract requirements, statutes, and U.S. Patent
Office rules and statutory requirements.


 


RELEASE OF DISCLOSURE:


 


If ABIOMED,
within one year after receiving an invention disclosure, has not made a
decision in favor of filing patent application on the invention, the inventor
may request the release of such invention disclosure.  After such request has been made, ABIOMED shall have an
additional period not to exceed one year within which to make a decision as to
whether to file a patent application, release the disclosure to the
inventor,  or to retain such disclosure
and full right thereto on payment to the inventor of the sum of one hundred
fifty dollars ($150.00), to be divided equally in the case of
co-inventors.  This paragraph is not
applicable to disclosure arising out of Government contracts.


 


RETENTION OF LICENSE:\


 


When releasing
invention disclosures to the inventor,   
ABIOMED may reserve the right to retain a royalty free license for
ABIOMED and its successors and/or subsidiaries and assigns and/or to condition
the release to the inventor on the actual filing of a patent application by the
inventor and on his/her own sponsorship in particular cases.  This paragraph is not applicable to
disclosures arising out of Government contracts.


 


OUTSIDE NEGOTIATIONS:


 


The right to
negotiate with outsiders for the acquisition of rights in ideas and patents is
reserved to the President or his designee and patent counsel.


 


RECORD KEEPING:


 


Engineering
notes, ideas, and/or inventions shall be recorded and maintained in ABIOMED
notebooks.  The notebooks are and will
remain the property of ABIOMED.


 


DISCLOSURE FORMS:


 


All disclosures
should be made on the attached ABIOMED disclosure form, using the suggested
outline printed thereon.  The inventor
should submit the signed original and three copies of his invention disclosure
to the President and/or Chairman of the Patent Committee for processing and
further action.


 


C-13

















 


PATENT COMMITTEE:


 


A patent
committee shall meet periodically to consider the merits of all disclosures
submitted, e.g., novelty, patent ability, commercial value.  The committee will annually elect a Chairman
who will advise the President of the committee’s recommendations.  The President will authorize the filing or
patent applications for those inventions deemed to be of superior quality.


 


 


	
   

  	
  APPROVED:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/

  	
   

  
	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
  Date: March
  1, 1992

  



 


C-14

















 


ABIOMED, INC.


 


DISCLOSURE OF
INVENTION


 


This
disclosure of Invention should be written in the inventor’s own words.  Sketches, prints, graphs, photos, and other
illustrations, as well as reports referring to the invention, if available,
should form a part of this disclosure and reference can be made in the space
provided on the form.


 


(1)           INVENTION TITLE:


 


(2)           INVENTOR NAME(S):


 


 


	
   

  	
   

  	
  -

  	
   

  	
   

  
	
   

  	
  SIGNATURE

  	
   

  	
  DATE

  



 


(3)           ABSTRACT:


 


(4)           WORK LEADING TO THIS INVENTION WAS
SUPPORTED BY:


 


(5)           DATE OF FIRST SKETCH OR DRAWING AND
LOCATION (IF NOT ATTACHED):


 


(6)                                 DATE
OF DISCLOSURE TO OTHERS (TO WHOM AND WHERE) AND DATE OF CONCEPTION, IF EARLIER:


 


(7)                                 CITE
LOCATION OF OTHER SUPPORTING RECORDS (NOTEBOOK PAGES, FILES, REFERENCES,
PROGRAM RECORDS):


 


 


	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURE OF
  WITNESS

  	
   

  	
  DATE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURE OF
  WITNESS

  	
   

  	
  DATE

  	
   

  



 


C-15

















 


RECORD OF INVENTION


 


INVENTION TITLE:


 


 


INVENTOR NAME(S):


 


 


DESCRIPTION


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURE OF
  WITNESS

  	
   

  	
  DATE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURE OF
  WITNESS

  	
   

  	
  DATE

  



 


C-16

















 


APPENDIX D


 


ABIOMED, INC.


 


List of all
Inventions made, conceived, or first reduced to practice alone or jointly with
others, prior to Executive’s employment with ABIOMED that are not, and will not
be, described in a publication or patent application in existence on the
effective date of this Agreement, and that Executive wants to exclude from the
effects of this Agreement.


 


 


	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
  Executive

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date

  	
   

  



 


If no list is
provided above, Executive represents that no invention exists on the effective
date of this Agreement.


 


 


	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
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C-17

















 


EXHIBIT D


 


GUIDELINES OF


 


COMPANY PRINCIPLES
AND PRACTICES


 


ABIOMED, INC. AND
SUBSIDIARIES


 


(COLLECTIVELY
REFERRED TO AS “ABIOMED”)


 


EXCELLENCE AND
STANDARDS OF QUALITY


 


ABIOMED’s
reputation as a leader in medical device technology and related scientific
fields is based, to a large extent, on the excellence of its technology and
products and on the skill and superior performance of its personnel.  We shall endeavor to provide our customers
with quality products, and, when we are involved in research and development
work, we will use our best efforts to achieve the results for which we have
been engaged.  We shall ensure that our
promotional material, proposals, quotations, reports, specifications,
scientific and medical publications, application guides, news releases, and
other description literature accurately depict our products or developments and
are free from exaggeration and misleading information.


 


It is the
Company’s policy to strictly comply with all federal, state and local laws and
regulations pertaining to all products that we develop and manufacture.   We recognize that we are in the business of
making medical devices and therefore human life may depend on the reliability
and performance of our products.  We shall
adhere to the highest standards of excellence in every aspect of development
and manufacturing of our products.  We
owe this to our patients, to our customers, to our shareholders and to
ourselves.  We shall conduct our work in
accordance with this policy and will immediately report to the corresponding
Divisional President any practices that we may observe that are not in full
compliance with it.


 


CONFLICT OF INTEREST


 


The guiding
principle of our policy on this matter is that all employees must avoid
situations in which their personal interests may conflict, or appear to
conflict, with the interests of ABIOMED.


 


At the same
time, ABIOMED does not wish to infringe on the personal lives or affairs of
employees.  For example, we respect the
rights of our employees to manage their own financial affairs and
investments.  However, an employee
assumes certain obligations when joining ABIOMED or accepting a position of
responsibility in the organization, and ABIOMED naturally expects all employees
to respect its interests.


 


D-1

















 


All of us can recognize clear-cut cases of
dishonesty.  Conflicts of interest may
be more difficult to detect, and sometimes it is only a matter of degree
between an acceptable and an unacceptable activity.  The responsibility for conduct within the letter and the spirit
of this policy must rest with each individual. 
However, we want to stress that it is important to avoid not only any
situation that is an obvious conflict of interest but also a situation that
might give the appearance of being one.


 


It is not
possible to list every situation that might give rise to conflict of interest,
but the following pages shall serve as a guide, pointing out important areas
were conflicts may arise:


 


Employees
shall select and deal with suppliers, customers, and other persons doing or
seeking to do business with ABIOMED in a completely impartial manner, without
favor or preference based upon any considerations other than the best interests
of ABIOMED.


 


Employees
shall not seek or accept, directly or indirectly, any benefits or other favors
of more than nominal value, including any payments, fees, services or loans
from any person or entity that does or seeks to do business with, or is in
competition with, ABIOMED, except where such favors have been disclosed to
ABIOMED and ABIOMED has given specific approval and authorization.  This does not prohibit employees from
borrowing money from a financial institution at normal and customary interest
rates without the approval and authorization of ABIOMED.


 


Employees
shall not own, directly or indirectly, a significant financial interest in any
business entity that does or seeks to do business with, or is in competition
with, ABIOMED except where such interest has been fully disclosed to ABIOMED
and a determination has been made that such interest will not influence any
decision that such person might be required to make in performing duties for
ABIOMED.


 


As a guide for
the purpose of determining the necessity for disclosure, ownership in such
business entity shall be deemed significant if the aggregate interest of the
employee and family members represents:


 


1.             more than one percent of the
outstanding securities of a corporation (or ownership interests of any unincorporated
business), or


 


2.             more than five percent of the total
assets of such an employee and family members.


 


Members of the
family include the employee’s spouse, children, parents, brothers, and sisters.


 


Employees
shall not conduct business on behalf of ABIOMED with a relative or a business
entity with which the employee or a relative is associated, except where such
dealings have been disclosed to ABIOMED and ABIOMED has given specific approval
and authorization.


 


D-2

















 


Employees shall not offer consultation or
conduct business or offer their professional services for personal interest, or
in the interest of family members, to any business entity outside of ABIOMED
where such professional services are of the same general nature as the
employee’s professional function at ABIOMED.


 


Employees
shall not accept a directorship or other managerial position in, or serve as a
consultant or employee of, a business entity, organized for profit, that does
or seeks to do business with, or is in competition with, or is in competition
with, ABIOMED, without receiving specific approval from ABIOMED.


 


Employees
shall not acquire, directly or indirectly, real estate, an interest in any
business entity, or any other property that such employee knows, or has reason
to believe, may be of acquisition interest to ABIOMED.


 


Employees
shall have the continuing affirmative duty to report to the Chief Executive
Officer of ABIOMED any personal ownership interest or other relationship that
might affect their ability to exercise impartial, ethical business judgments in
the area of their responsibilities. 
Each situation reported shall be reviewed by ABIOMED and a determination
shall be made as to whether a conflict of interest exists or may arise from
such a situation.  All employees shall
give ABIOMED their fullest cooperation in the correction of any situation in
which a conflict of interest exists or may arise.


 


GIFTS AND ENTERTAINMENT


 


In order to
avoid even the appearance of impropriety, monetary gifts are strictly
prohibited.  ABIOMED employees shall not
seek or accept for themselves or any member of their families from any person
or business entity that does, or seeks to do, business with ABIOMED, any gifts
of money or other equivalent favors. 
The exchange of non-monetary gifts of a nominal or minimal value is
acceptable, as is legitimate business entertainment, as long as it is not
lavish and does not exceed the bounds of common courtesies consistent with
ethical and business practices in the United States.


 


CONFIDENTIALITY AND TRADE SECRETS


 


Our position
at ABIOMED is one of trust and confidence. 
During the course of employment with ABIOMED, employees may have access
to work with or develop inventions, valuable information, and materials
relating to ABIOMED’s business that are not know or available outside
ABIOMED.  These inventions, proprietary
information, and materials are broadly called “trade secrets” and are of great
importance in our highly competitive business. 
In order to retain their value, they must be kept confidential within
ABIOMED.


 


D-3

















 


When an individual accepts employment with
ABIOMED, the employee also accepts a continuing moral and legal obligation not
to disclose any ABIOMED trade secrets or trade secrets entrusted by others to
ABIOMED under a confidential obligation. 
In a similar fashion, if an employee was previously employed by another
organization, the employee has an obligation not to disclose his/her previous
employer’s confidential information. The obligation to protect ABIOMED’s trade
secrets would continue, should the employee leave ABIOMED for any reason.


 


Some
innovations that ABIOMED employees may develop may be patentable
inventions.  In such cases, employee’s
obligations to ABIOMED include a duty to submit complete details to the Patent
Committee for study and review and to cooperate with ABIOMED’s intellectual
property attorneys if patents are to be sought.  These ideas and any resulting patents are owned by ABIOMED and
are part of its closely guarded assets. 
Not all technical ideas are patentable; some are better retained as
trade secrets.  However, patenting is an
important way of protecting ABIOMED’s investment in its employees.


 


It is
impossible to list all of the many types of trade secrets that exist, but a
partial list would include:  plans for
and results of research and development, new compounds and processes, clinical
testing and other evaluation procedures, product formulations, manufacturing
methods, identity of special suppliers, applications to government agencies for
product clearance, cost figures, construction plans, marketing and advertising
studies and plans, customer lists, and special techniques of any kind peculiar
to ABIOMED’s operations.  Employees will
find trade secrets disclosed or contained in memoranda, notes, laboratory or
plant notebooks, reports, charts, drawings, blueprints, pictures, visual aids,
samples, etc.  These are examples of
materials that every ABIOMED employee should safeguard carefully during
employment with ABIOMED and leave behind as ABIOMED property in the event the
employee goes elsewhere.


 


Accidental
disclosure of trade secrets can be as harmful as intentional disclosure. The
safest practice is avoid discussing trade secrets with anyone other than those
ABIOMED employees who need them in the conduct of their business.  If you discuss trade secrets with others -
even family members or close friends - a burden is imposed on them that they
should not be expected to understand or assume.


 


In the normal
course of work, it may be necessary to reveal certain trade secrets to persons
outside ABIOMED - to contractors, vendors, design firms, trade and scientific
groups, for example.  In such instances,
employees should carefully consider whether, to what extent, and to whom the
trade secrets can be safely disclosed. 
Specific supervisory clearance may be necessary.  In most cases, a confidentiality agreement
approved by the Chief Executive Officer, or the Patent Committee should be
executed with the outside party before the disclosure is made.  When the trade secret is an invention that
may be patentable, approval for release - either orally or publication - must
be obtained from the employee’s supervisor and the Patent Committee.


 


It is the
responsibility of each ABIOMED employee to exercise proper care in preparing
documents or other materials containing trade secrets, in safeguarding them
from unauthorized eyes, and in circulating and storing them in a secure manner.


 


D-4

















 


In no event shall an employee use or disclose
information of any type when such use or disclosure is in violation of the laws
relating to the safeguarding of classified information.


 


DISCLOSURE OF “MATERIAL” INFORMATION


 


The primary
objective of the federal securities laws is to ensure that the public has
accurate and complete information on which to base investment decisions.  These laws are designed to encourage a flow
of information to the public.


 


ABIOMED’s
obligations under such laws will be generally met through the means of
prospectuses, annual reports to shareholders, proxy statements, and periodic
reports filed with the Securities and Exchange Commission. In addition, ABIOMED
has an obligation to announce to the public, at the proper time, “material”
developments concerning its operations. 
Such an announcement is made through a press release, as this will
ensure that accurate information is made available to all members of the
investing community on an equal basis.


 


It is not
possible to define “material” information to cover every set of circumstances
that might arise.  We must, therefore,
describe it in broad terms.  It has been
held that information is “material” if there is a substantial likelihood that a
reasonable investor would consider it important in determining whether to buy,
sell, or hold stock.  Material
information has also been described as information of sharp and immediate
significance.  If known, such
information could be expected to affect substantially the market price of the
stock.


 


Examples of
what would generally be considered as being “material” in this context include
financial projections, significant new products or discoveries, major contract
awards or major contract cancellations, acquisitions, stock splits, major
management changes, significant litigation or regulatory proceedings,
information about sales of our product and financial results.


 


It is unlawful
for employees who have “material” undisclosed information to take personal
advantage of that information by trading in ABIOMED’s stock so long as the
information remains undisclosed.  This
means that an employee in possession of “material” undisclosed information must
refrain from trading ABIOMED stock until ABIOMED determines that the
information should be released and makes the proper public disclosure, and the
investing public has had a reasonable opportunity to evaluate the information.
Also, an employee should not reveal material undisclosed information to outsiders
such as friends, relatives, fellow employees, or former employees, who may
trade on the basis of it.  Such
“tipping” may also be a violation of the law.


 


EQUAL EMPLOYMENT
OPPORTUNITY


 


One of
ABIOMED’s basic philosophies is to encourage and develop high-quality
performance and excellence in all aspects of our operations.  An essential ingredient in the
implementation of that philosophy is the fostering of those characteristics in
our employees.


 


D-5

















 


Because our primary focus in employment is
the pursuit of excellence, we are unequivocally committed to affording equal
employment opportunities to all individuals who share our commitment to
excellence regardless of their race, color, religion, sex, national origin,
age, or handicap.  This commitment
applies to all phases of an individual’s career, beginning with initial
recruitment and hiring and continuing through the ongoing processes of
placement, transfer, promotion, and compensation.  ABIOMED personnel must actively ensure that all decisions
affecting those matters further the principles of equal employment opportunity.
We recognize our responsibilities to women, minorities, veterans, and the
disabled and handicapped, and ABIOMED fully supports the remedial programs
instituted by the government to assist the members of these groups in achieving
their rightful place in our society.


 


ABIOMED will
endeavor to maintain enlightened personnel policies and practices designed to
help in the successful implementation of our equal employment opportunity
policy.  No employee will be subject to
any harassment or discrimination or to any arbitrary or capricious decisions
relating to his or her work.  We respect
the personal privacy of every employee, and we will maintain all personnel
records in the strictest confidence. 
Members of ABIOMED’s supervisory staff are responsible for the
implementation of our policy, but the help and cooperation of all employees are
necessary to fulfill ABIOMED’s commitment.


 


COMPLIANCE WITH ANTITRUST LAWS


 


ABIOMED fully
supports the principles and philosophy embodied in the antitrust laws, and it
is our firm policy to comply with these laws.


 


This brief
commentary is not intended to provide employees with answers to antitrust
problems.  Rather, it is designed to
help employees recognize situations that have antitrust aspects so that they
will know when to ask for advice.


 


Described in
general terms, antitrust laws are designed to prevent unfair, restrictive, or
collusive practices and thus, to promote healthy competition in open markets
within the free enterprise system and enhance the benefits of product
innovation.  Since World War II, the
European Economic Community and many countries abroad also have adopted
antitrust policies.


 


The antitrust
laws are general and in some respects vague; their exact interpretation is
often uncertain.  Therefore, legal
advice should be obtained whenever there is any doubt as to the legality of any
contemplated course of action or of a proposed transaction.


 


We must, of
course, avoid the obvious antitrust violations, such as agreements with
competitors to fix prices (including collusive bids), to allocate markets or
customers, or to refuse to do business. 
All of these agreements are flagrant violations of the law. In addition,
any cooperative activities in the area of pricing, such as the exchange of
current or future price information or marketing plans with competitors, must
be avoided.  This does not mean that a
manufacturer is expected to do business in a vacuum, but rather, that his/her
information about competitor’s prices and marketing activities must be obtained
in the marketplace.


 


D-6

















 


ABIOMED
generally is not allowed to discriminate in favor of or against any of its
customers.  Also, since our customers
purchase our products and thereby acquire title to them, those customers cannot
by agreement or by coercion be subjected to restraints on their resale prices.  Nor, as a general proposition, can these customers
be subjected to restraints upon where, how, or to whom the products are resold
by them.


 


Trade Association
Meetings.


 


It is, of
course, our practice for employees to attend trade association meetings.  These include associations of customers as well
as trade associations of the industries in which ABIOMED is involved. However,
trade association meetings are almost invariably a favorite area of examination
by antitrust enforcement officials.  It
is important that employees be particularly careful to conduct themselves in a
manner that is above suspicion when attending these meetings.


 


The following rules should be
obeyed carefully:


 


1.             Attend only meetings of legitimate
trade and professional associations held for proper business, scientific, or
professional purposes.


 


2.             Apart from purely social affairs,
never attend gatherings of representatives of competitors before, during, or
after the formal business sessions of a trade association.  Such “rump” meetings are always suspect.


 


3.             Take no part in, or even listen to,
any discussions of price, terms of sale, boycotts, or blacklists at an
association meeting.  However,
discussions of general economic trends are proper.  If the discussion at an association meeting turns to the subject
of prices or other prohibited topics, leave the room.


 


4.             If the agenda of a forthcoming
association meeting indicates doubtful subjects, check in advance with your
supervisor before attending.


 


5.             Advise your supervisor or the
appropriate legal counsel promptly of any activity of an association that may
appear to be illegal or even suspicious.


 


Joint activity
or joint projects with competitors or others should be closely monitored, with
the advice of legal counsel, to ensure the legality of the operation.  Review by legal counsel should be obtained
at any early date in connection with any such project, and also as it develops.


 


No supplier
shall be asked or be expected to buy ABIOMED products or the products of
affiliated companies as a condition of continuing to be a supplier.  ABIOMED’s purchase of supplies shall not be
influenced by a supplier’s use of ABIOMED products.


 


D-7

















 


It cannot be
emphasized too strongly that our policy to comply with antitrust laws must be
observed strictly and without hesitation. There can be no exceptions to this
rule.


 


D-8

















 


INDIVIDUAL
INVOLVEMENT IN


THE POLITICAL PROCESS


 


All employees
are encouraged to exercise their right, as citizens, to support or oppose
political candidates or public and civic issues as they deem appropriate.  We should be careful, however, to keep the
individual and personal nature of such activities clearly separate from our
positions with ABIOMED, and we should particularly avoid any situation from
which it might be inferred that such activities have been undertaken on behalf
of ABIOMED.


 


ABIOMED itself
may, from time to time, and as permitted by law, take an active position with
respect to important public issues. 
Such activities, however, will only be initiated on the highest
Corporate level and will not, in any circumstance, indicate any attempt to
unduly influence or change the personal and private position of any employee.


 


POLITICAL
CONTRIBUTIONS


PAYMENT TO GOVERNMENT
OFFICIALS


 


ABIOMED is
proud of the well deserved reputation for integrity of its employees, at all
levels, who have demonstrated the highest standards of business conduct.  This conduct must be maintained in each
country where we may do business. 
ABIOMED shall strive to be a good corporate citizen of each country and
community where it does business, and to obey local laws.


 


In the area of
business ethics, ABIOMED shall adhere on a worldwide basis to a uniform
worldwide standard of conduct to guide our behavior.  We are committed to this principle.


 


With respect
to political contributions, payments to government officials, and the
maintenance of books and records, our policy is that:


 


No political
contribution shall be made by ABIOMED.


 


“Political
contribution” includes a “payment” or the use of ABIOMED property, employees,
or services for the benefit of any political party or official thereof,
political committee or candidate for political office.


 


No payment
shall be made by ABIOMED to any government official for the purpose of
influencing any of his acts or decisions or inducing him to use his influence
to affect any governmental act or decision.


 


“Payment means
a transfer of money, a gift, or any offer or promise to give anything of value,
whether made directly or indirectly, through trade associations, agents,
consultants, or others.  “Government
official” includes any officer or employee or any person acting for or on
behalf of a government or unit thereof.


 


D-9

















 


ACCOUNTS AND ASSETS


 


All assets
must be fully and accurately accounted for and no undisclosed or unrecorded
bank accounts, funds, or assets of ABIOMED or any subsidiary shall be
established for any purpose.


 


No false or
artificial entries shall be made in any books or records of ABIOMED for any
reason, and no employee shall engage in any arrangement that results in such
entries being made.


 


No asset of
ABIOMED shall be disposed of without proper authorization and without a
corresponding entry correctly reflecting the disposal.


 


No payment on
behalf of ABIOMED shall be approved or made with the intention or understanding
that a part or all of such payment is to be used for any purpose other than
that described by the document supporting the payment.


 


D-10